State v. Moore

• Decision Date: 07 November 1969
• Parties: STATE of Oregon, Respondent, v. Jennings Bryant MOORE, Jr., Appellant.
• Court: Oregon Court of Appeals

Page 866

460 P.2d 866

1 Or.App. 394

STATE of Oregon, Respondent, v. Jennings Bryant MOORE, Jr., Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 17, 1969.

Decided Nov. 7, 1969.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before SCHWAB, C.J., and LANGTRY, FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant appeals from a conviction upon jury trial of assault and robbery while armed with a dangerous weapon.

At 12:30 a.m. on December 3, 1967, the attendant of a gas station in southeast Portland was held up. The attendant identified the defendant as the robber. The defendant was familiar to the attendant because they had previously been inmates in the same jail at the same time. The robber wore a green jacket which appeared to be the same as the defendant had in his possession when arrested. The robber used a gun which the attendant said looked like the gun received in evidence at the trial. The robber initiated the transaction by asking, 'Would you believe this is a holdup?' Later he displayed the gun and said, 'Now would you believe it?' The robber left the scene in a black, 1960 Chevrolet, License No. 4S332. This is the crime of which the defendant was convicted.

At 9:45 p.m. on the same day, another gas station in southeast Portland, attended by Mr. and Mrs. Richard Lee, was robbed by two men. At the trial of the case at hand, both Mr. and Mrs. Lee identified the defendant as the man who held them up; however, Mr. Lee had previously failed to identify the defendant in a police lineup, although prior to the lineup he had picked the defendant's photograph from a group of mug shots. The Lees testified that the defendant initiated this robbery by asking, 'Would you believe this is a holdup?,' at which time he pulled out a gun. Late in the evening of the day of the robberies, during a police 'stake-out' at a southeast Portland residence, the defendant and another person arrived in the car identified as that used in the first robbery. After the defendant went into the house, police officers entered and arrested the defendant. At the time of arrest the defendant had in his possession the green jacket which was received in evidence at the trial and nine rounds of ammunition which fit the gun, later introduced as the robbery weapon at the trial. The next day the automobile was searched. The search produced additional ammunition of the same type, along with a holster. About a month later, the police were called to the same residence regarding a threat with a gun. At that time, one Taylor who lived at that residence, ran into a house two blocks away and 'stashed' the gun in question amidst the laundry. It was recovered moments later at the time of the man's arrest. The evidence showed that a slot had been cut into the holster found in the 'getaway' automobile and that this slot accommodated the trigger guard of the gun in question.

After Mr. Lee identified the defendant in the courtroom, he testified on cross-examination that he had picked the defendant's photograph from a group of 'mug shots,' but had not recognized him in the lineup. Counsel for the defendant then moved for a mistrial and this gives rise to defendant's assertion on appeal that the recent 'lineup' decisions of the United States Supreme Court, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), require that a witness not be permitted to make an in-court identification if he could not make a lineup identification. We do not so construe them. While these opinions leave many questions unanswered, particularly those of a procedural nature, they clearly hold that in-court identification is admissible, if it is independent of an illegal lineup. For a more complete analysis of the Wade-Gilbert-Stovall holdings, see State v. Mershon, Or.App., 89 Or.Adv.Sh 359, 459 P.2d 551, decided by this court October 10, 1969. The essence of the Wade, Gilbert and Stovall holdings is that the principle of the Sixth Amendment right to counsel at a critical stage requires that the court:

'* * * (S)crutinize Any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself * * *.' United States v. Wade, supra, 388 U.S. 218 at 227, 87 S.Ct. 1926 at 1932, 18 L.Ed.2d 1149 at 1157.

Effective cross-examination in this case was in no way diminished by the identification procedure. In fact, the cross-examination produced the ultimate favorable result to the defendant so far as the lineup was concerned. It demonstrated that the witness, in looking at the defendant in the lineup prior to trial, did not identify him as the man who had robbed him. No error was committed in receiving Mr. Lee's identification testimony.

Defendant's second assignment of error is that the trial court erred in permitting in evidence testimony that the defendant had robbed another gas station. There was evidence that the defendant robbed two separate gas stations in the southeast Portland area within a span of a few hours. He opened each transaction by stating, 'Would you believe this is a holdup.' While the expression 'would you believe' may not be uncommon, we find nothing to indicate that it is one commonly used by armed men holding up gas-station attendants in southeast Portland.

Evidence that another crime was committed by the defendant by use of the same 'novel means or in a particular manner' is admissible to show the identification of the defendant. State v. O'Donnell, 36 Or. 222, 226, 61 P. 892,...