State v. Lawson
| Decision Date | 29 November 2012 |
| Docket Number | SC S059234 (Control)); (CF080348,SC S059306).,(CC 03CR1469FE; CA A132640,CA A140544 |
| Citation | 291 P.3d 673,352 Or. 724 |
| Parties | STATE of Oregon, Respondent on Review, v. Samuel Adam LAWSON, Petitioner on Review. State of Oregon, Respondent on Review, v. Stanley Dale James, Jr., Petitioner on Review. |
| Court | Oregon Supreme Court |
OPINION TEXT STARTS HERE
On review from the Court of Appeals.*
Daniel J. Casey, Portland, argued the cause and filed the brief for petitioner on review Samuel Adam Lawson.
Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review Stanley Dale James, Jr. With him on the brief was Peter Gartlan, Chief Defender.
Anna Marie Joyce, Solicitor General, Salem, argued the cause for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Andrew M. Lavin, Assistant Attorney General.
Ramon A. Pagan, Janet Hoffman & Associates, LLC, Portland, filed a brief on behalf of amicus curiae Oregon Criminal Defense Lawyers Association.
Matthew G. McHenry, Levine & McHenry LLC, Portland, filed a brief on behalf of amicus curiae The Innocence Network.
Marc Sussman, Marc Sussman, P.C., Portland, filed a brief on behalf of amicus curiae College and University Professors Solomon Fulero et al.
Margaret Garvin and Sarah LeClair, Portland, filed a brief on behalf of amicus curiae National Crime Victim Law Institute.
In these two criminal cases consolidated for purposes of opinion, each defendant's conviction was based, for the most part, on eyewitness identification evidence. In State v. Lawson, 239 Or.App. 363, 244 P.3d 860 (2010), the Court of Appeals concluded that, despite the state's use of unduly suggestive pretrial identification procedures, under the test first articulated by this court in State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979), the victim's identification of defendant Lawson had been reliable enough to allow the jury to consider it in its deliberations. In State v. James, 240 Or.App. 324, 245 P.3d 705 (2011)—again relying on Classen—the Court of Appeals similarly concluded that, although the witnesses had been subject to an unduly suggestive police procedure in the course of identifying defendant James, those identifications had nevertheless been sufficiently reliable, and were therefore admissible at trial.
In the 30–plus years since Classen was decided, there have been considerable developments in both the law and the science on which this court previously relied in determining the admissibility of eyewitness identification evidence. We allowed review in each of these cases to determine whether the Classen test is consistent with the current scientific research and understanding of eyewitness identification. In light of the scientific research, which we discuss below, we now revise the test set out in Classen and adopt several additional procedures, based generally on applicable provisions of the Oregon Evidence Code (OEC), for determining the admissibility of eyewitness identification evidence.
On August 21, 2003, Noris and Sherl Hilde embarked on a weekend camping trip in the Umpqua National Forest, driving to a location where Mr. Hilde had pitched a tent the weekend before to claim the campsite. When they arrived at the campsite with their trailer, they found defendant's yellow truck in their parking space and discovered that defendant had moved into their tent. When Mr. Hilde told defendant that it was their tent, defendant apologized and told them that he thought that it had been abandoned. Defendant gathered his gear, loaded it into his truck, and moved to a vacant campsite nearby, where he stayed in view of the Hildes for about 40 minutes before leaving the area. According to Mrs. Hilde's later recollections, defendant had been wearing a dark or black shirt and a black hat with white lettering.
Later that evening, at approximately 10:00 p.m., Mrs. Hilde was shot in the chest with a large caliber hunting rifle as she stood at the window of the trailer. Mr. Hilde called 9–1–1, but was shot while speaking with the 9–1–1 operator, and he died shortly thereafter. The 9–1–1 dispatcher called back and spoke with Mrs. Hilde, who told the dispatcher that she and her husband had been shot, that she did not know who shot them, and that “they”—referring to the shooter or shooters—had wanted the Hildes' truck. When emergency personnel arrived, they found Mrs. Hilde lying in the trailer, critically wounded but conscious. Mrs. Hilde was transported out of the camp and transferred to an ambulance at the highway and then to a helicopter, which flew her to a hospital in Bend. An ambulance attendant testified that Mrs. Hilde was rambling and hysterical while en route to the hospital. According to the testimony of various ambulance and medical personnel, Mrs. Hilde continued to refer to the perpetrator as “they,” and stated alternately at various times that the shooter was the man who had been at their campsite earlier in the day, that the pilot of the helicopter was the shooter, and that she did not know who the perpetrator was and had not seen “their” face or faces. Mrs. Hilde was near death when she arrived at the hospital, and immediately went into surgery.
The second day after the shooting, August 23, 2003, a police detective attempted to interview Mrs. Hilde in the hospital. Mrs. Hilde was heavily medicated and sedated, and could not speak due to a breathing tube in her throat. Her hands had been restrained to prevent her from attempting to remove the tube or other lines, and she could respond to questions only by nodding or shaking her head. The detective first showed Mrs. Hilde a black-and-white photo lineup that included a picture of defendant, who had come to the attention of police after he volunteered to the police that he had encountered the Hildes at their campsite on the morning of the day they were shot. When the detective asked whether she saw in the lineup the person who shot her, Mrs. Hilde shook her head no. The detective then, using leading questions, asked Mrs. Hilde whether she had seen the person who shot her earlier in the day, whether he had been in their tent, and whether he drove a yellow truck. Mrs. Hilde nodded “yes” in response to those questions.
The police again attempted to interview Mrs. Hilde approximately two weeks later, on September 3, 2003. Mrs. Hilde was still in the hospital and still medicated and in fragile condition, but she could speak. She told detectives that after her husband was shot, the perpetrator had entered the trailer and put a pillow over her face. She said that she did not know who he was, and that she could not see the man because it was dark and because of the pillow. She was apologetic that she was unable to help the police more and did not think she could identify anyone.
Approximately one month after the incident, on September 22, 2003, the police again interviewed Mrs. Hilde. At that interview, Mrs. Hilde told the detectives that, notwithstanding the pillow over her face, she had briefly seen the man who came to her trailer after the shootings. However, she was again unable to pick defendant's photograph out of a lineup. She said that the perpetrator was wearing a dark shirt and a baseball cap, but did not tell police that it was the same man that she and Mr. Hilde had encountered at their campsite earlier that day.
The police interviewed Mrs. Hilde again a week later, on October 1, 2003. At the outset of that interview, one of the detectives and Mrs. Hilde reviewed her answers to the leading questions that she had been asked at the first interview. Mrs. Hilde had no recollection of that interview. Mrs. Hilde nevertheless told the detectives that she now believed that the perpetrator was the man who had been in their camp earlier in the day. However, she “could not swear” it was him, because she claimed to have seen his face only in profile. Mrs. Hilde declined to view a profile lineup, telling the detective that she did not think she would be able to pick her attacker out of the lineup. The detectives then informed Mrs. Hilde that “the man that you've identified is the person that we have in custody,” and identified defendant Samuel Lawson by name.
Some time later, a worker at the rehabilitation facility where Mrs. Hilde was convalescing showed her a newspaper photograph of defendant with a caption that identified him as the suspect who had been arrested for the shootings. Approximately one month before defendant's trial—two years after the shootings, and unbeknownst to defendant and his lawyers—police investigators exposed Mrs. Hilde to defendant's likeness several more times. On one occasion, the investigating detective showed Mrs. Hilde a single photograph of defendant wearing a dark shirt and a dark hat with white lettering. On another, the detective took Mrs. Hilde to the courthouse, where she personally observed defendant during a pretrial hearing. Later that day, in the detective's office, Mrs. Hilde inadvertently came across one of the earlier photo lineups she had viewed without successfully identifying a suspect from the various photographs. She was then able to pick defendant's picture out of the lineup.1
At trial, Mrs. Hilde identified defendant as the man who had shot both her and her husband. She testified that, following the shootings, she had heard the perpetrator approaching the trailer. Afraid that the perpetrator would kill her if she saw him, she looked away from the door. She testified that the perpetrator had put a cushion over her face and demanded the keys to the Hildes' truck. She then testified that he walked away, presumably to look for the truck keys. Accordingly to Mrs. Hilde, when he came back, she turned her head to look at him from under the cushion and recognized him as the man who had been in their camp earlier. When asked whether...
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