State v. McJunkin
| Decision Date | 15 November 1976 |
| Citation | 27 Or.App. 401,556 P.2d 164 |
| Parties | STATE of Oregon, Respondent, v. Arthur Lee McJUNKIN, Appellant. |
| Court | Oregon Court of Appeals |
F. William Honsowetz, Jr., Eugene, argued the cause for appellant. With him on the brief were Gardner & Honsowetz, P.C., Eugene.
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and TANZER and RICHARDSON, JJ.
Defendant appeals his conviction of attempted first degree rape. (ORS 163.375(1)(b)). He raises two issues: first, the admissibility of an array of photographs used for identification purposes, and second, whether the acts proved were sufficient to constitute an attempt.
The matter was tried to the court without jury. The victim, a nine-year-old girl, testified that she was in a supermarket parking lot when defendant, seated in his pickup started talking to her. From the record we may paraphrase the colloquy between defendant and the complaint. Defendant asked how old she was and she replied 'nine.' He then asked her birthday, after her response he asked 'can I give you a ride?' When she declined this offer he said 'I'll pay you.' She again declined. Using a coarse street term defendant asked if she had ever had intercourse, to which she answered 'no.' He then, again using the street term, said he sure would like to have intercourse with her.
At this juncture the complaint ran toward her home and the defendant drove away. The girl obtained the license number of the pickup and observed in which direction the pickup had gone.
The police were immediately called and took the girl to defendant's home where she identified him as the man who had talked to her. This occurred about a half-hour after the incident in the supermarket parking lot.
Six months later, and a day before the trial, the complainant was shown five photographs of different men from which she selected defendant's picture as that of the man who had spoken with her. At trial defendant objected to the introduction of the photographs on the ground the process of photographic identification was unduly suggestive. His objection was overruled; he assigns this as error.
We agree with the trial court's ruling. The complainant made an in-court identification of defendant; this was not challenged. He makes no contention the incourt identification was tainted by the photographic identification process held the pay before trial.
The defendant's position is summarized in this quotation from his brief '* * * the procedure used by the State in having isolated the Defendant with the victim shortly after the incident tainted any subsequent photo lineup.' On-the-scene confrontations, shortly after the crime, between witnesses and suspects is an acceptable means of identification. State v. Madden, 1 Or.App. 242, 461 P.2d 834 (1969).
The United States Supreme Court, in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), departed from the traditional rule that the manner in which an extrajudicial identification is conducted affects only the weight and not the admissibility. The court then in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), applied this principle to pretrial identification by photographs and stated that such identifications
'* * * will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. * * *'
Applying that standard to this case we conclude that neither the procedure followed nor the series of photographs used was impermissibly suggestive. The photographs were relevant to connect the defendant with the crime and were properly received.
At the close of the state's case defendant moved for judgment of acquittal, and at the close of his defense for directed verdict, contending both times there was not sufficient evidence to support a conviction for attempt. Both...
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