State v. Smith

• Decision Date: 11 January 1984
• Citation: 66 Or.App. 374,675 P.2d 1060
• Parties: STATE of Oregon, Respondent, v. Ernest Leroy SMITH, Appellant. C 81-02-30858; CA A22787.
• Court: Oregon Court of Appeals

Page 1060

675 P.2d 1060

66 Or.App. 374

STATE of Oregon, Respondent, v. Ernest Leroy SMITH, Appellant.

C 81-02-30858; CA A22787.

Court of Appeals of Oregon.

Argued and Submitted June 10, 1983.

Decided Jan. 11, 1984.

Steven H. Gorham, Salem, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmaher, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his convictions for attempted murder, first degree assault and first degree robbery. We delete the minimum sentence imposed but otherwise affirm the judgment.

In November, 1980, Ms. Hutt was robbed and severely beaten by a man who had gained access to her Portland home by representing to her that he was interested in buying her house. One week later, she helped police with a composite picture of her assailant. The following day, police officers showed her some photographs to see if she could identify her attacker. She was unable to do so. On December 4 and December 9, 1980, police showed her more pictures, but she could not select one. In late January, police brought yet another group of photographs to show her. This time she positively identified defendant as her assailant.

Defendant, who conducted his own defense with the aid of a legal adviser, first assigns as error the trial court's denial of his pretrial motion requesting access to the Multnomah County Courthouse Law Library. We are not able to review fully this assignment of error, because defendant did not designate the transcript of the hearing on his motion as part of the record on appeal. All that we have before us pertaining to this alleged error is the trial court's order denying the motion in part and allowing it in part. The trial court ordered:

" * * * [T]he defendant's motion for access to the Legal Library situated in the Multnomah County Courthouse be and the same is hereby denied.

"IT IS FURTHER ORDERED that the defendant's motion for access to the legal library located in the Multnomah County Jail at Rocky Butte be and the same is hereby allowed, and that the defendant is also to have access to the books provided by his advisor, Kenneth Lerner."

Thus, defendant was not, as he asserts, denied access to the Multnomah County Courthouse Law Library. Defendant's "legal advisor," attorney Lerner, was specifically authorized to supply defendant with materials from the county library in addition to the materials in the Rocky Butte Jail library. In effect, defendant is complaining that the trial court erred in refusing him personal access to the county law library. Although a defendant may not be penalized for exercising his constitutional right to represent himself, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), "neither is he entitled to special treatment or benefits not afforded to defendants with counsel." State v. Addicks, 34 Or.App. 557, 560, 579 P.2d 289, rev. den. 284 Or. 80a (1978). Defendant had ample access to legal source material in both the jail library and the county library. There is no merit to his first assigned error on the record before us.

Next, defendant attacks the trial court's refusal to exclude the victim's in-court identification of him as her assailant. State v. Classen, 285 Or. 221, 590 P.2d 1198 (1979), provides for a two-stage test for determining whether a challenged identification is admissible. First, the court must determine whether the pretrial process leading to the offered identification was unduly suggestive. If it was, the prosecution must satisfy the court that the proffered identification has a source independent of the suggestive procedure. The trial court found that the process leading to the victim's identification was not suggestive and did not reach the second stage of the Classen formulation. We have reviewed the relevant portions of the record and agree with the trial court.

Defendant contends that the identification procedure utilized by a detective on one occasion should be presumed suggestive, because Detective Johnson misplaced the photographs he showed Ms. Hutt on December 9, 1980. That display, therefore, was not available for examination by the trial court. Defendant urges that because the police failed to preserve the array, we must presume that it was suggestive. See Branch v. Estelle, 631 F.2d 1229 (5th Cir.1980). We decline to consider this contention on its merits, because it was not raised below. It was defendant's obligation to frame the issues at the omnibus hearing. State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975); State v. Carter/Dawson, 34 Or.App. 21, 25, 578 P.2d 790 (1978), modified 287 Or. 479, 600 P.2d 873 (1979).

In his third assignment, defendant contends that the trial court erred when it denied his motion to appoint an expert on the reliability of eyewitness identification. In State v. Calia, 15 Or.App. 110, 514 P.2d 1354 (1973), rev. den., cert. den. 417 U.S. 917, 94 S.Ct. 2621, 41 L.Ed.2d 222 (1974), we rejected a similar argument and explained that "[although] eyewitness identification evidence has a built-in potential for error * * *, [t]he law does not deal with that potential for error by allowing expert witnesses to debate the quality of the evidence for the jury." 15 Or.App. at 114, 514 P.2d 1354. See also State v. Schroeder, 62 Or.App. 331, 661 P.2d 111, rev. den. 295 Or. 161, 668 P.2d 380 (1983); State v. Goldsby, 59 Or.App. 66, 70, 650 P.2d 952 (1982). The trial court correctly denied defendant's motion.

Defendant next attacks the trial court's denial of his motion to require the state to "elect" an offense to be submitted to the jury. Citing State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979), defendant asserts that the court should have compelled an "election" because this case involves multiple charges arising out of a single act. Defendant misinterprets Cloutier, where the issue was "merger," not "election." The court expressly said that "[i]t is the dispositional phase that concerns us here." 286 Or. at 590. (Emphasis supplied.) "Election," on the other hand, usually arises when the state has indicted for more than one offense, or for all offenses which occurred more than one time, and thus must "elect" which offense or date is to be submitted to the jury. See State v. Pace, 187 Or. 498, 212 P.2d 755 (1949); State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290 (1922).

We rejected an argument analogous to the one defendant makes here in State v. Tron, 39 Or.App. 603, 592 P.2d 1094 (1979). There, we explained that "[t]he time to deal with merger, if at all, is after the verdict." 39 Or.App. at 605, 592 P.2d 1094. The trial court did not err in denying defendant's motion.

Next, defendant maintains that the court should not have permitted two police officers to testify, because they disobeyed a subpoena duces tecum to produce their field notes. Defendant again fails to quote verbatim the provisions of the subpoenas he allegedly caused to be served on the police officers. Moreover, we have been unable to locate those subpoenas in the record. Consequently, we do not know precisely what defendant requested that the officers produce or whether they disobeyed a validly issued and served subpoena duces tecum, as he asserts. In any event, in framing his assignment of error, defendant refers to "field notes." Police officers' fragmentary field notes are not discoverable. State v. Morrison, 33 Or.App. 9, 575 P.2d 988 (1978); State v. Bray, 31 Or.App. 47, 569 P.2d 688 (1977). Therefore, even if defendant is correct in his assertion that the officers disobeyed a validly served subpoena duces tecum, the trial court did not err when it permitted them to testify.

As his sixth assigned error, defendant complains that the trial court erred when it permitted the prosecutor to refer continually to defendant's not having lived at home for six months prior to trial. Again, defendant fails to cite verbatim the testimony about which he complains, ORAP 7.19(2), and we refuse to search the voluminous record for this alleged error. State v. Mendenhall, 53 Or.App. 174, 631 P.2d 791 (1981); State v. Cooney, 36 Or.App. 217, 222, 584 P.2d 329 (1978); State v. Burris, 27 Or.App. 835, 557 P.2d 701, rev. den. 277 Or. 491 (1977); ORAP 7.19(5). ¹

Next, defendant asserts that the trial court should have granted defendant's motion to suppress the items seized by police during a search of a Denver, Colorado, hotel room that defendant shared with his girlfriend, Ellis, at the time of his arrest. Defendant refused to give police his consent to search the room. Ellis, however, did consent to the search, and several of the items seized during that search were introduced at trial. Defendant argues that, because no evidence was introduced establishing that he and Ellis had an agreement that she was "authorized" to use or handle defendant's personal effects, the police officers violated defendant's Fourth Amendment ² rights by failing to obtain a search warrant. We disagree.

Although defendant refused when police asked his permission to search the room, he acknowledges that the room actually was rented by Ellis. Defendant also conceded at the suppression hearing that he told police that he did not know whether he was "authorized" to give them permission to search, but that Ellis might be willing to consent to the search. Ellis consented both orally and in writing to the search of her hotel room. We conclude that her consent authorized police to search without first obtaining a warrant. See State v. Frame, 45 Or.App. 723, 609 P.2d 830, rev. den. 289 Or. 587, cert. den. 450 U.S. 968, 101 S.Ct. 1486; 67 L.Ed.2d 617 (1980) (wife's consent sufficient to authorize search of house shared with defendant). The trial court did not err when it denied defendant's motion to suppress. See also ...