Samuel Adam Lawson brief

8/3/2019 Samuel Adam Lawson brief

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IN THE SUPREME COURT OF THE STATE OF OREGON

_______________

STATE OF OREGON,

Plaintiff-Respondent,Respondent on Review,

v.

SAMUEL ADAM LAWSON,

Defendant-Appellant,

Petitioner on Review.

Douglas County Circuit CourtCase No. 03CR1469FE

Court of Appeals No. A132640

Supreme Court No. S059234

_______________

BRIEF ON THE MERITS

OF PETITIONER ON REVIEW LAWSON_______________

Review of the Decision of the Court of Appealson Appeal from a Judgment

of the Circuit Court for Douglas CountyHonorable RONALD POOLE, Judge

_______________Affirmed by Written Opinion: December 15, 2010

Before: Wollheim, P.J., Brewer, C.J. (authored majority opinion),and Sercombe, J. (dissenting)

_______________

DANIEL J. CASEY #95227PO Box 82818

Portland, Oregon 97282-0818Telephone: (503) 774-3283

Attorney for Petitioner on Review

JOHN KROGER #07720Attorney General

MARY H. WILLIAMS #91124Solicitor General

Justice Building

Salem, Oregon 97301-4096Telephone: (503) 378-4402

Attorneys for Respondent on Review

9/11

September 2, 2011 03:17 P


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TABLE OF CONTENTS

STATEMENT OF THE CASE............................................................................1

Nature of the Proceeding....1

Legal Questions Presented on Review...1Proposed Rules of Law..2

Summary of Argument..4

1) suggestive identification, due-process discovery violation.4

2) issues related to other unsolved shootings..6

3) undisclosed ex parte jury contacts, juror illness.7

Statement of Facts.7

ARGUMENT...8

I) The victims identification testimony was tainted by undulysuggestive procedures, and not shown to be independentlyreliable.8

A) Statement of Pertinent Facts......8

B) The Court of Appeals majority misapplied Classensreliability burden..12

1) opportunity to view perpetrator.....14

2) timing and completeness of the description..15

3) witness certainty...19

4) lapse of time...205) failure to identify defendant in two photo throw-

downs; learning defendants name from police;viewing newspaper photo of defendant.20

C) The majority opinion wrongly diminishes the trial courtsgate-keeping role..21

II) The state wrongly failed to disclose the suggestive identificationprocedures, which defendant discovered only at trial24

A) Statement of Pertinent Facts....24

B) The failure to disclose the suggestive-identification

procedures violated defendants right to compulsoryprocess and due process...25

1) Evidence that the victim was subject to undulysuggestive procedures was material and favorableto the defense26

2) Comparable evidence was not available todefendant..26

3) The police acted in bad faith....27


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III) Defendant was wrongly denied access to evidence about similar,nearby shootings....29

A) Statement of Pertinent Facts....29

B) Denying defendant access to material and favorableevidence violated his right to compulsory process and dueprocess.31

1) Defendant established that the Lane Countydocuments were material and favorable32

2) Denying defendant the documents violated his dueprocess right to the discovery of exculpatoryevidence.34

3) Denying defendant the documents violated his right tocompulsory process...35

IV) Defendant was wrongly prohibited from presenting evidenceabout other, nearby unsolved shootings....36

A) Statement of Pertinent Facts...36

B) Excluding evidence of the other shootings violated theOregon Evidence Code and defendants constitutional rightto present a defense.38

1) Evidence about the other shootings was relevant.38

2) The court abused its discretion in excluding theevidence under OEC 403.40

3) Exclusion of the evidence violated defendantsconstitutional right to present a defense...41

V) The trial courts numerous undisclosed ex parte contacts withthe jury during trial and guilt-phase deliberationswarranted a

mistrial...43A) Statement of Pertinent Facts....43

B) Defendant was denied his right to fair trial by the trialcourts ex parte contacts with the jury....48

1) Defendants motion for a mistrial was timely..48

2) Defendant should have received a mistrial...51

a) The trial courts failure to make a record isprejudicialper se and warrants automaticreversal...52

b) The trial courts failure to notify defense

counsel of the change of lawyers/price paidnote was prejudicial...54

c) The trial court wrongly failed to notify defensecounsel of jury questions about robbery andaggravated murder.56

d) The trial court had additional improper andundisclosed ex parte contacts with the jury...57


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VI) Defendant should have received a new trial, based on a jurorsfailure to disclose her severe illness and chemotherapy treatmentsduring trial60

A) Statement of Pertinent Facts......60

B) Failure to disclose the jurors chemotherapy and weakenedimmune system denied defendant a fair trial.63

1) Defendant was entitled to a new trial based on jurormisconduct..63

2) Defendant was entitled to a new trial based onirregularity in the proceedings66

CONCLUSION....67

TABLE OF AUTHORITIESCases Cited

Ball v. Gladden,250 Or 485, 443 P2d 621 (1968)..29

Bollenbach v. United States,326 US 607, 66 S Ct 402, 90 L Ed 350 (1946)....56

Brady v. Maryland,373 US 83, 83 S Ct 1193, 10 L Ed 2d 215 (1963)..24, 25, 26, 29, 31,

32, 35, 37California v. Trombetta,

467 US 479, 104 S Ct 2528, 81 L Ed 2d 413 (1984).25, 34

Carson v. Brauer,234 Or 333, 382 P2d 79 (1963)50, 59, 63

Chambers v. Mississippi,410 US 284, 93 S Ct 1038, 35 L Ed 2d 297 (1973).....42

Clark v. United States,289 US 1, 53 S Ct 465, 77 L Ed 993 (1933)64

Ertsgaard v. Beard,310 Or 486, 800 P2d 759 (1990)..64

Fillippon v. Albion Vein Slate Co.,250 US 76, 39 S Ct 435, 63 L Ed 853 (1919)....52, 56

Foster v. California,394 US 440, 89 S Ct 1127, 22 L Ed 2d 402 (1969).22

Gilbert v. California,388 US 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967)...22

Grammer v. Wiggins-Meyer Steamship Co.,126 Or 694, 270 P 759 (1928)..54

Grannis v. Ordean,234 US 385, 34 S Ct 779, 58 L Ed 1363 (1914)..52

Hastings v. Top Cop Cut Feedlots, Inc.,285 Or 261, 590 P2d 1210 (1979)..49, 53


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Herron v. Southern Pacific Co.,283 US 91, 51 S Ct 383, 75 L Ed 857 (1931)..56

Holmes v. South Carolina,547 US 319, 126 S Ct 1727, 164 L Ed 2d 503 (2006)...41, 42

Holt v. Virginia,381 US 131, 85 S Ct 1375, 14 L Ed 2d 290 (1965).52

Huntley v. Reed,276 Or 591, 556 P2d 122 (1976)..49, 53, 54

Iron Horse Engineering v. Northwest Rubber,193 Or App 402, 89 P3d 1249,rev den 337 Or 657 (2004)..51, 53, 54

Irvin v. Dowd,366 US 717, 81 S Ct 1639, 6 L Ed 2d 751 (1961)..65

Kyles v. Whitley,514 US 419, 115 S Ct 1555, 131 L Ed 2d 490 (1995).18

Manson v. Brathwaite,

432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977)8, 12, 13, 15, 16,20, 22Maulding v. Clackamas County,

278 Or 359, 563 P2d 731 (1977)..49

McCathern v. Toyota Motor Corp.,332 Or 59, 23 P3d 320 (2001)..40

Moore v. Illinois,434 US 220, 98 S Ct 458, 54 L Ed 2d 424 (1977)...13

Neil v. Biggers,409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972)....12, 15, 16, 19,

20, 22

People v. Daniels,88 AD 2d 392, 453 NYS 2d 699 (2d Dept 1982).23

Pennsylvania v. Ritchie,480 US 39, 107 S Ct 989, 94 L Ed 2d 40 (1987)...25, 32

Peters v. S.I.A.C.,236 Or 27, 386 P2d 800 (1963)51

Powell v. Alabama,287 US 45, 53 S Ct 55, 77 L Ed 158 (1932)52

Quercia v. United States,289 US 466, 53 S Ct 698, 77 L Ed 1321 (1933)..56

Ratliff v. Demarinis,152 Or App 269, 954 P2d 209,rev den 327 Or 192 (1998)...59

Rogers v. United States,422 US 35, 95 S Ct 2091, 45 L Ed 2d 1 (1975).....52, 56

Sheppard v. Maxwell,384 US 333, 86 S Ct 1507, 16 L Ed 2d 600 (1966).....65

Shields v. United States,273 US 583, 47 S Ct 478, 479, 71 L Ed 787 (1927)52


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Simmons v. South Carolina,512 US 154, 114 S Ct 2187, 129 L Ed 2d 133 (1994)....52

Simmons v. United States,390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968).......12, 15, 20, 22

Shilling v. United States,561 US ___, 130 S Ct 2896, 177 L Ed 2d 619 (2010).....64

Sneath v. Physicians and Surgeons Hosp.,247 Or 593, 431 P2d 835 (1967)....50, 59

State ex rel Gladden v. Lonergan,201 Or 163, 269 P2d 491 (1954)..32

State ex rel Wilson v. Thomas,74 Or App 137, 700 P2d 1045 (1985)..27

State v. Amini,331 Or 384, 15 P3d 541 (2000)..64, 65

State v. Baldeagle,154 Or App 234, 961 P2d 264,

rev den 327 Or 621 (1998)...64State v. Barone,

329 Or 210, 986 P2d 5 (1999),cert den 528 US 1086 (2000)...38

State v. Brown,297 Or 404, 687 P2d 751 (1984)..23

State v. Brown,310 Or 347, 800 P2d 259 (1990)..50

State v. Cartwright,173 Or App 59, 20 P3d 223 (2001),revd on other grounds 336 Or 408 (2004)....24, 31

State v. Cazares-Mendez,350 Or 491, 256 P3d 104 (2011)..43

State v. Classen,285 Or 221, 590 P2d 1198 (1979).5, 8, 10, 11, 12, 13

14, 20, 21, 23, 24State v. Delgado,

902 A2d 888, 188 NJ 48 (2006)...23

State v. Hampton,317 Or 251, 855 P2d 621 (1993)....40, 41

State v. Hayward,327 Or 397, 963 P2d 667 (1998)..57

State v. Holcomb,131 Or App 453, 886 P2d 14 (1994)....64

State v. Johanesen,319 Or 128, 873 P2d 1065 (1994)12

State v. Johnson,313 Or 189, 832 P2d 443 (1992)..39

State v. Koennecke,274 Or 169, 545 P2d 127 (1976)..27


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State v. Lawson,239 Or App 363, 244 P3d 860 (2010).1, 11, 13, 14, 15, 16, 17, 18,

19, 20, 21, 22, 25, 31, 38, 48, 62State v. Ledbetter,

881 A2d 290, 275 Conn 534 (2005),cert den 547 US 1082 (2006)...23

State v. Mai,294 Or 269, 656 P2d 315 (1982)....25, 32

State v. Moen,309 Or 45, 786 P2d 111 (1990)....41

State v. Norrid,611 NW 2d 866, 2000 ND 112 (2000).23

State v. O'Key,321 Or 285, 899 P2d 663 (1995)..23

State v. Parkins,346 Or 333, 211 P3d 262 (2009)..50

State v. Phillips,314 Or 460, 840 P2d 666 (1992)..39

State v. Pinnell,311 Or 98, 806 P2d 110 (1991)....39

State v. Pratt,316 Or 561, 853 P2d 827,cert den 510 US 969 (1993).55

State v. Rogers,330 Or 282, 4 P3d 1261 (2000)....41

State v. Thoma,313 Or 268, 834 P2d 1020 (1992)42

State v. Thompson,328 Or 248, 971 P2d 879,cert den 527 US 1042 (1999)...57

State v. Vettrus,142 Or App 359, 922 P2d 673,rev den 324 Or 323 (1996).....58, 59

State v. Warren,304 Or 428, 746 P2d 711 (1987)..27

State v. White,55 Or App 729, 639 P2d 1291 (1982)....51, 53

State v. White,303 Or 333, 736 P2d 552 (1987)..55

State v. Zweigert,344 Or 619, 188 P3d 242 (2008)....49, 50

Stovall v. Denno,388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967).12, 22

Sumner v. Mata,455 US 591, 102 S Ct 1303, 71 L Ed 2d 480 (1982)...13


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United States v. Bagley,473 US 667, 105 S Ct 3375, 87 L Ed 2d 481 (1985)...26

United States v. Crews,445 US 463, 100 S Ct 1244, 63 L Ed 2d 537 (1980).....15, 16, 19, 20

United States v. Nixon,418 US 683, 94 S Ct 3090, 41 L Ed 2d 1039 (1974)...32

United States v. Southwell,432 F3d 1050 (9th Cir 2005)...56, 57

United States v. Valenzuela-Bernal,458 US 858, 102 S Ct 3440, 73 L Ed 2d 1193 (1982).25, 32, 33

United States v. Wade,388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967).14, 22

Wainwright v. Greenfield,474 US 284, 106 S Ct 634, 88 L Ed 2d 623 (1986).55

Watkins v. Sowders,449 US 341, 101 S Ct 654, 66 L Ed 2d 549 (1981).23

White v. Estelle,459 US 1118, 103 S Ct 757, 74 L Ed 2d 973 (1983)...65

Williams v. Taylor,529 US 420, 120 S Ct 1479, 146 L Ed 2d 435 (2000).66

Young v. Crown Zellerbach,244 Or 251, 417 P2d 394 (1966)....49, 51

Statutory and Constitutional Provisions

Fed Rule Crim Proc 43..52

FormerORS 17.325.....51, 53

FormerORS 17.610(7)..49FormerORS 17.630...49

OEC 102.....42

OEC 401.....2, 3, 6, 38

OEC 403.....2, 3, 6, 38, 40, 41

ORS 136.330..45

ORS 136.330(1)..51

ORS 136.480..50

ORS 136.535......60

ORS 136.535(1)......63

ORCP 58 D.58

ORCP 59 C(5)......47, 57

ORCP 59 D.....4, 45, 47, 50, 51, 52, 53, 54, 55, 56

ORCP 59 E.57

ORCP 64.........60


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ORCP 64 B...4, 62, 63

ORCP 64 B(1)..62, 63, 66, 67

ORCP 64 B(2)..62, 63

Or Const, Art I, 10...45

Or Const, Art I, 11...3, 4, 24, 25, 30, 31, 35, 37, 38, 45, 62, 63, 64, 65, 67

UTCR 3.120(2)(b)..65

US Const, Amend V..2, 4, 8, 45, 47, 51

US Const, Amend VI........2, 3, 4, 24, 25, 30, 32, 35, 37, 38,42, 45, 47, 51, 52, 62, 63, 64, 67

US Const, Amend XIV.2, 4, 8, 12, 24, 25, 31, 38, 41, 45, 47, 51

Other Authority

E. Loftus,

Eyewitness Testimony (1979)...23


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BRIEF ON THE MERITS OF PETITIONER ON REVIEW LAWSON_______________

STATEMENT OF THE CASE

Nature of the ProceedingThis is a criminal appeal of defendants convictions, after a jury trial, on

five counts of aggravated murder, three counts of attempted aggravated murder,

and two counts of first-degree robbery, and his resulting sentence of life without

the possibility of parole. The Court of Appeals affirmed defendants

convictions and sentence by written opinion. State v. Lawson, 239 Or App 363,

244 P3d 860 (2010).

Legal Questions Presented on Review

(1) Did the Court of Appeals err in concluding that the state had met its

burden under of proving that an eyewitness identification obtained through

concededly suggestive procedures was nonetheless independently reliable?

(2) Was the Court of Appeals correct in suggesting that any error in

admitting unreliable eyewitness testimony in suggestive-identification cases can be

cured at trial by cross-examination, expert testimony, closing arguments, and jury

instructions?

(3) Does the states failure to disclose to the defense that the surviving

victim of a shooting had been shown a single photograph of defendant before trial,

and brought to a pretrial hearing to see him, violate defendants state and federal

constitutional right to compulsory process, and his due-process right to the

production of exculpatory evidence?

(4) Is it a violation of defendants state and federal constitutional right to

compulsory process, and his due-process right to exculpatory evidence, to preclude

his the defense from reviewing records about a double-homicide involving a

nearby, similar shooting, which occurred while defendant was incarcerated?


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(5) Is it a violation of OEC 401, OEC 403, and the state and federal

constitutional right to present a defense, to exclude evidence of other shootings that

were similar to the one for which defendant was on trial, which occurred near the

crime scene at a time when defendant was incarcerated?(6) Is it an abuse of the trial courts discretion, and a violation of

defendants Fifth, Sixth, and Fourteenth Amendments rights, to deny his motion

for a mistrial based on the trial courts receipt of various juror notes during guilt-

phase deliberationswhich asked legal questions and expressed concerns about

juror illnesswithout notifying defense counsel of those notes or allowing them an

opportunity to be heard before responding to the notes?

(7) Is it an abuse of the trial courts discretion, and a violation of a

defendants state and federal constitutional right to a fair trial, to deny his motion

for a new trial when a juror failed to disclose until guilt-phase deliberations that

she had a weakened immune system because of chemotherapy, another juror was

so sick with the flu that no one wanted to be in the same room with him, and the

trial court never disclosed that information to defense counsel?

Proposed Rules of Law

(1) The state failed to carry its burden of proving that a shooting victims

in-court identification of defendant was independently reliable of concededly

suggestive identification procedures, where the victims statements immediately

after the shootingthat she did not see and did not know who shot herwere not

only internally inconsistent and contrary to her testimony at trial, but she

previously failed to pick defendant out of two separate photo lineups, it was only inresponse to leading questions and a pattern of police manipulation that her

identification evolved into the certainty she expressed at trial, and that certainty

itself was undermined and contradicted in several material respects by the

detectives who interviewed her, and the first officials on scene.


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(2) Suggesting that the erroneous admission of unreliable eyewitness

testimonytainted by unduly suggestive procedurescan be cured at trial through

cross-examination, expert testimony, argument, and instructions, wrongly

diminishes the importance of the trial courts gate-keeping role. As with scientificevidence, eyewitness testimony has an increased potential to sway juries. As such,

when a witness has been subject to unduly suggestive identification procedures, it

is vitally important to ensure such identification is independently reliable before

exposing the jury to it.

(3) The states failure to disclose that the surviving victim and sole

witness to a double shooting had been shown a single photograph of defendant

before trial, and allowed to observe him in court at a pretrial hearingwhich the

defense did not discover until cross-examining the victim at trialviolated

defendants right to compulsory process under Article, I, section 11, and the Sixth

Amendment, and his due-process right to the production of exculpatory evidence,

where such evidence would have impeached the reliability of the victims

identification testimony. Also, where the detective who showed the victim the

photograph, and took her to the pretrial hearing, testified that he intentionally

chose not to disclose those procedures to the defense, the record demonstrates bad

faith by the police, for which the prosecution is responsible.

(4) A trial courts refusal to order disclosure of documents involving a

double murder that occurred near the crime scene, under circumstances similar to

the shooting for which defendant was on trial, violated defendants right to

compulsory process under Article, I, section 11, and the Sixth Amendment, as wellas his due-process right to the production of exculpatory evidence, because such

evidence is both material and favorable to the defense.

(5) In addition to violating OEC 401 and OEC 403, the exclusion of third-

party-guilt evidence involving two different, but similar shootings near the scene


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of a shooting for which defendant was on trial, and which occurred after he was

incarcerated, violated his right to compulsory process under Article, I, section 11,

and the Sixth Amendment, his due-process right to the production of exculpatory

evidence, and his Sixth and Fourteenth Amendment right to present a defense.(6) A trial courts failure immediately to notify the defense that it had

received and responded to several notes from the jury during guilt-phase

deliberationsas well as its numerous ex parte contacts with the jury about juror

illnesses during trial and deliberationsviolated ORCP 59 D, defendants Sixth

Amendment right to counsel, and his Fifth and Fourteenth Amendment right to due

process. Where defense counsel moves for a mistrial as soon as the trial court

discloses the entire contents of the notes and the circumstances surrounding its

additional ex parte contacts with the jury, it is improper to deny that motion as

untimely. Also, a trial courts failure to retain one such note to which it responded

constitutes the failure to make a record, which is itself deemed prejudicialper se

and warrants automatic reversal.

(7) A jurors failure to disclose that she was so ill during guilt-phase

deliberations she was receiving chemotherapy and had a weakened her immune

system, and the trial courts failure to disclose this to defense counsel upon

learning it, violated defendants right to a fair trial under ORCP 64 B, Article I,

section 11, and the Sixth Amendment, where another juror was so sick with the flu

during deliberations that no one wanted to be in the same room with him.

Summary of Argument

1) suggestive identification, due-process discovery violationIt is undisputed that the police in this case subjected the surviving witness to

unduly suggestive identification procedures before trial, by taking her a pretrial

hearing to view defendant and showing her a single photograph of him. As such,

the sole question on this issue is whether the state carried its burden of proving that


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the victims in-court identification of defendant at trial was sufficiently reliable and

independent of those suggestive circumstances. State v. Classen, 285 Or 221, 232-

33, 590 P2d 1198 (1979). The Court of Appeals majority effectivelyand

wronglyrelieved the state of that burden by holding it satisfied where thepertinent Classen factors overwhelming demonstrate the unreliability of that

identification, as the dissent correctly concluded. Those factors include the poor

conditions under which the victim saw the perpetrator and the multiple inconsistent

statements she made about him, the sketchiness of her description, her failure to

pick defendant out of two photo-line ups, and the passage of more than two years

between the shooting and trial.

Moreover, the few factors on which the majority reliedthe victims

repeated assertion that the perpetrator was the man from the camp, her opportunity

to view defendant earlier that day, and the certainty she expressed at trial

demonstrates a fundamental misunderstanding of how the leading and suggestive

circumstances occurring before trial irreparably tainted the victims recall and

essentially implanted false memories. See Classen, 285 Or at 227 (acknowledging

the widely recognized risk that eyewitness identification may often be unreliable

at best and at worst may be the psychological product of the identification

procedure itself) (emphasis added).

Also, the majority opinion wrongly suggests that any error in admitting

unreliable eyewitness testimony can be cured at trial simply by cross-examination,

expert testimony, closing arguments, and jury instructions. In doing so, the

majority failed to comprehend how the use of unduly suggestive identificationprocedures make eyewitness testimony similar to scientific evidence that does not

clear a threshold reliability hurdlein that juries are likely to afford both more

persuasive weight than is warranted by their reliabilityand why a trial courts

gate-keeping role is so vital to ensuring such reliability exists before allowing the


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jury to be swayed.

The Court of Appeals also wrongly rejected, without explanation,

defendants due-process/compulsory-process claim based on the bad-faith failure

of police to disclose that the victim had been shown a single photograph ofdefendant and allowed to view him at a pretrial hearing, which defense counsel

discovered only at trial while cross-examining the victim. Such official

misconduct was fundamentally unfair, and should not be tolerated in an

aggravated-murder prosecution , particularly where the state sought the death

penalty.

2) issues related to other unsolved shootings

The Court of Appeals also wrongly rejected, without discussion, defendants

due-process/compulsory-process claim based on the trial courts refusal to allow

defense examination of investigation records from a neighboring county pertaining

to a similar, unsolved double-murder that occurred near the crime scene while

defendant was incarcerated. To the extent defendant did not make the requisite

showing of materiality and favorability on the basis of publicly available

information, he asks this court to conduct its own in camera review.

It was also reversible error to exclude the publicly available evidence of that

other unsolved murderand an additional nearby shootingon relevance and

time-consumption grounds, where such evidence was clearly relevant to the

defense theory under OEC 401, and the trial court failed to demonstrate that it

considered the proper discretionary factors under OEC 403. Alternatively, to theextent that evidence is not admissible under the Oregon Evidence Code, excluding

it violated defendants constitutional right to present a defense, where its

trustworthiness was not disputed.


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3) undisclosed ex parte jury contacts, juror illness

The Court of Appeals further erred in rejecting, without discussion,

defendants mistrial and new-trial claims based on the trial courts numerous

undocumented and undisclosed ex parte contacts with the jury during trial andguilt-phase deliberations. That included the courts failure to notify either side of

various notes received from the jury during deliberations, and its response to such

notes without allowing either side to be heard, in violation of various statutory

rules and constitutional provisions. Defendant also was denied a fair trial by a

jurors failure to disclose to the court until guilt-phase deliberations that she was

undergoing chemotherapy and had a weakened immune system, where another

juror was so sick with the flu he thought he should be hospitalized and other jurors

were avoiding him, and the trial court again did not notify defense counsel upon

receiving this information. At a minimum, defendant should have been allowed to

voir dire jurors about these issues.

Statement of Facts

Defendants convictions are based on the nighttime sniper shooting of

Noris and , a middle-aged couple camping alone in the Umpqua

National Forest in the summer of 2003. Defendant had been present in the

campground earlier that day. The surviving spouse, (the victim),

testified that immediately after she and her husband were shot that night,

defendant approached and asked for the keys to the couples truck. Defendant

testified and denied any involvement in the shooting, or being in or near thecampground that night. There was evidence that the bullet recovered from the

deceased had been fired from a type of rifle similar to the one defendant said

had been stolen from his truck while camping several days before.


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ARGUMENT

I) The victims identification testimony was tainted by undulysuggestive procedures, and not shown to be independently reliable.

A) Statement of Pertinent Facts

During the guilt-phase of trial, after discovering that police had shown the

victim a single of photograph of defendant that was not disclosed in discovery,

defendant filed a Motion to Strike In-Court Identification by , in which

he argued that the witness was so manipulated by the police that her memory has

been permanently contaminated and [h]er identifications of the defendant in

court were unreliable. (11/8/05 Motion to Strike, pp. 1, 3-5, citingdue process

clauses of Fifth and Fourteenth Amendments, State v. Classen, 285 Or 221, 590P2d 1198 (1979), and Manson v. Brathwaite, 432 US 98, 97 S Ct 2243, 53 L Ed 2d

140 (1977)). Defendant repeated those arguments at the hearing on his motion.

(11/10/05 Tr 3-5, 8-15, 27-28).

In denying defendants motion, the trial court made the following factual

findings in a letter ruling.

a. Pretrial identification.

1) [The victim]s observations of the defendant on the morningof August 21, 2003. [The victim] had a period ofapproximately 40 minutes to observe the defendant at BriggsCamp on the morning of August 21, 2003. She describedhim as a nice-looking, clean cut man with a thin mustache,who ap d depressed. She was several steps behind Norris when her husband talked to the defendant andheard t e efendants voice and saw his face. [The victim]was curious about the defendants demeanor (she describedhim as nonchalant), and remembered the manner in whichthe defendant moved (which she characterized as a lopingwalk). [The victim] recalled that the defendant was

wearing a dark or black shirt and a black hat that had whitelettering. [The victim] paid particular attention to thedefendant because the circumstances made her feel uneasy,and she was relieved when he left the campground.

2) [The victim]s observation of the man on the g ofAugust 21, 2003. After [the victim] and Norris wereshot, [the victim], who was on her back on the f oor, eardfootsteps approaching the door of her trailer. , whosounded panicked, asked for the keys to thepickup, and [the victim] told him the keys were e t er in her


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husbands pocket or in the truck. The man asked [thevictim] if she had seen him, and [she] indicated that she hadnot seen him. The man put a pillow over her face to blockher view and apparently proceeded to look for the keys. Theman was unsuccessful in his quest and returned to [thevictim]demanding to know the location of the keys. [Thevictim] told the man to look in the truck, and the man

left again. After a period of time, the man returned, and ina less forceful manner, repeated his request for the locationof the keys. After [the victim] told the man the location ofher keys, the man walked away. [The victim] thought thatshe recognized the voice and the manner of walk, and shedecided to turn her head so she might view the person.Thereafter, the man walked by the doorway of the trailer,and in the light that came from inside the trailer, she saw themans profile as he stopped for a brief time. [The victim]recognized the man as the same person that had been intheir camp site at Briggs Camp earlier that day.

3) Photo lineup on August 23, 2003. At the request Douglas

County authorities, Thomas Kipp of the Oregon State Policestationed in Bend contacted [the victim] at St. CharlesHospital on August 23, 2003. Trooper Kipp had beenprovided a photo lineup (the photos printed in black andwhite) from Douglas County that included a photograph ofthe defendant. Because of her condition, [the victim] wasunable to understand what she was being shown, andpresently is not sure if she was shown a photo lineup on thisdate. In response to leading questions (which werecompelled given her condition, [the victim] communicatedthat she and her husband had been shot by a single personthat she could identifywho drove a yellow pickup.

4) Photo lineup on September 23, 2003. Officers Merrifieldand Bradburn of the Douglas County Sheriffs Office andTrooper Kipp had contact with [the victim] at St. CharlesHospital on September 22, 2003. [The victim] was shown aphotograph of the defendants truck, which she identified asbelonging to the man that was in Briggs Camp on themorning of the shooting. In addition, [the victim] wasshown a color photo lineup that included a booking of thedefendant following his arrest. [The victim] was unable toidentify anyone in the lineup, indicating that I cant see Icant make it out I cant see any of them. [The victim]recounted the events of the day, and asserted that the manthat did the shooting was wearing the same hat and shirt as

the man who was in their camp earlier in the day. At theconclusion of the interview, in response to concerns voicedby [the victim], Officer Merrifield informed [the victim] thatthey had a person in custody, and that her family was safe.

4)[sic] Identification of the defendant by name on October 1, 2003.In a follow-up interview conducted by Officer Merrifield andothers on October 1, 2003, [the victim] provided additionaldetails of the events of August 21, including a description ofthe man as a taller person wearing a baseball cap and darkcolored shirt. She related that she had not seen the full face


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of the person, but that she had seen his profile. Followingthe interview, Officer Merrifield told [the victim] that theperson in custody was [defendant].

5) Newspaper photo. After [the victim] returned to theRoseburg area, she resided for a time in an assisted livingfacility. It is unclear as to the length of [the victim]s stay in

this home; however, during the year 2004, [the victim] wasshown a newspaper photograph of the defendant by anemployee of the facility. On this record, this is the first timethat [the victim] saw a photograph of the defendant when herability to observe was intact.

6) Personal view and photo of defendant in September 2005. InSeptember 2005, [the victim] attended a pre-trial hearing inthis case in the company of Officer Merrifield. Thedefendant was seated at counsel table, and apparently [thevictim] was able to see at least a portion of the defendantsface from her seat in the back of the courtroom. Thereafter,Officer Merrifield provided [the victim] with a singlephotograph of the defendanta photograph that was takenby officers in August 2003, showing the defendant wearing adark shirt and a dark hat with white lettering.

7) Trial preparation and the view of the color photo lineup. InSeptember or October 2005, Officer Merrifield had ameeting with [the victim] for the purpose of preparing fortrial. Officer Merrifield, with [the victim] at his side, wasflipping through a notebook of photographs when [thevictim] observed the color photo lineup (the same collectionthat had been shown to [the victim] on September 22, 2003).Without prompting, [the victim] pointed to the defendantsphoto and indicated thats him.

b. In court identification. During the trial on November 4, 2005, [thevictim] identified the defendant as the person that shot her husbandand herself. When asked if she had any doubt, [the victim] replied:Absolutely not. Ill never forget his face as along as I live.Later she added: I always knew it was him.

(ER-251 to ER-27 [11/12/05 letter ruling], 2). The trial court denied

defendants motion to strike underState v. Classen as follows:

a. Were any of the pre-trial identification procedures suggestive?Because her abilities to observe and to communicate were impaired,the first photographic image that [the victim] was able to comprehendwas shown to her by a person not associated with law enforcement.Clearly, this display was suggestive because there was only one

photograph, and it was accompanied by a newspaper article relating tothe case. However, this was not an act of law enforcement, and theState cannot be held accountable as Officer Merrifield had only

provided [the victim] the defendants name to this point. Officer

1 ER refers to the Excerpt of Record defendant filed in the Courtof Appeals.


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Merrifield did, however, allow events to occur that were suggestivethe personal view of the defendant in court followed by a display of asingle photograph of the defendant (the Court has specificallyexcepted the display of the color photo line up because it does notappear to be suggestive given the inclusion of other photographs ofsimilar individuals).

b. Does the in-court identification have a source independent of thesuggestive procedure? It is the opinion of the Court that [the victim]sin-court identification of the defendant is based on her personalobservations of the defendant on August 21, 2003. [The victim] had asignificant period of time to observe the defendant during the initialcontact, and she took note of his features and demeanor. Later, afterthe shooting, [the victim] saw the defendants profile from a relativelyshort distance, observed his attire and heard his voice. She is certainthat the man that was in their camp site on the morning of August21, 2003, is the same man that shot her husband and herself laterthat evening.

c. Jury issue. Given the finding that [the victim]s in-court identificationof the defendant is based on her personal observations, the reliabilityand probative value of the identification under the circumstances is aquestion for the jury.

(ER-28 [11/12/05 letter ruling], 2).

In the Court of Appeals, defendant argued that the trial court correctly ruled

that it was unduly suggestive to show the victim before trial a single photograph of

defendant as the person who had been arrested and charged, and allow her to view

him at a pretrial hearing, but that the victims in-court identification testimony at

trial was not shown to have an independently reliable source. (App Br 2-3, 31-38).

The state conceded that the victim had been exposed to unduly suggestive

identification procedures, and instead it attempted to defend only the trial courts

reliability ruling. (Resp Br 20, 24).

The Court of Appeals majority accepted the states concession that showing

[the victim] an individual picture of defendant and having her view defendant

during a pretrial hearing constituted suggestive processes. State v. Lawson, 239Or App 363, 374, 244 P3d 860 (2010). The majority held, however, that under the

factors identified in State v. Classen, the in-court identification had a sufficiently

reliable, independent source.Id. at 385. The dissent agreed that the process

leading to the victim's in-court identification was unduly suggestive, but would


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have held that the state failed to meet its burden to show that there was little

likelihood of misidentification in this case in light of the particular suggestiveness

of the prior procedures and the unreliability of the victim's prior identifications of

defendant. 239 Or App at 387-88.B) The Court of Appeals majority misapplied Classens reliability

burden.

The use of unduly suggestive identification procedures implicates a

defendants Fourteenth Amendment right to due process. State v. Johanesen, 319

Or 128, 134, 873 P2d 1065 (1994). When a defendant challenges identification

evidence on the ground that it is the product of a suggestive procedure, the trial

court firstmust determine whether the process leading to the offered identification wassuggestive or needlessly * * * departed from procedures prescribed to avoidsuch suggestiveness. If so, then the prosecution must satisfy the court thatthe proffered identification has a source independent of the suggestiveconfrontation or photographic display, * * * or that other aspects of theidentification at the time it was made substantially exclude the risk that itresulted from the suggestive procedure.

State v. Classen, 285 Or 221, 232, 590 P2d 1198 (1979) (internal quotation marks,

footnote omitted).2

In this case, although correctly accepting the states concession on the first

prong of the Classen testthat police subjected the victim to unduly suggestive

procedures by taking her to see defendant at a pretrial hearing and showing her a

single photograph of him before trial3the Court of Appeals majority made

2 Classen relied on several U.S. Supreme Court decisions, includingManson v. Brathwaite,supra,Neil v. Biggers, 409 US 188, 93 S Ct 375, 34 L Ed2d 401 (1972), Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d1247 (1968), and Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199

(1967). 285 Or at 223-25.3 See Brathwaite, 432 US at 109, 116 (identifications arising from

single-photograph displays may be viewed in general with suspicion because theyare unnecessarily suggestive);Biggers, 409 US at 195, 198-99 (walking defendantalone past victim, and having him recite statement, involved unnecessarysuggestiveness); Simmons, 390 US at 383 (danger [of incorrect identification]will be increased if the police display to the witness only the picture of a singleindividual who generally resembles the person he saw); Stovall, 388 US at 302(The practice of showing suspects singly to persons for the purpose of

Footnote continued


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several errors in applying Classens reliability analysis under the second prong,

which addresses whetheran identification made in a suggestive procedure has

nevertheless been demonstrated to be reliable despite that suggestiveness. 285 Or

at 233. Pertinent to that determination is the following non-exhaustive list offactors:

- (1) the opportunity that the witness had at the time to get a clear view of thepersons involved in the crime and the attention he or she gave to theiridentifying features;

- (2) the timing and completeness of the description given by the witnessafter the event;

- (3) the certainty expressed by the witness in that description and in makingthe subsequent identification; and

- (4) the lapse of time between the original observation and the subsequentidentification.

Id. at 232-33 (adopting factors fromBrathwaite). Application of those factors is a

question of law. Classen, 285 Or at 236, 238 (reversing, without deference to trial

court, denial of motion to suppress suggestive identification under second prong)

Lawson, 239 Or App at 381 (We are not * * * bound by the conclusions that the

trial court drew from the facts, if those facts do not support the conclusions.).4

Although acknowledging that the state bears the burden of proving that the

identification is based on a source independent of the suggestive confrontation, 239

(continued)identification, and not as part of a lineup, has been widely condemned.);see alsoMoore v. Illinois, 434 US 220, 229-30, 98 S Ct 458, 54 L Ed 2d 424 (1977) ([i]t isdifficult to imagine a more suggestive manner in which to present a suspect to awitness for their critical first confrontation[,] where the victim was asked tomake her identification after she was told that she was going to view a suspect,after she was told his name and heard it called as he was led before the bench in

court).4 See also Sumner v. Mata, 455 US 591, 597 and n 10, 102 S Ct 1303,71 L Ed 2d 480 (1982) (the ultimate question as to the constitutionality of thepretrial identification procedures used in this case is a mixed question of law andfact; whether the witnesses in this case had an opportunity to observe the crimeor were too distracted; whether the witnesses gave a detailed, accurate description;and whether the witnesses were under pressure from prison officials or others areall questions of fact that require* * * a finding of historical fact[,] but areviewing court may reach a different conclusion in light of the legal standard).


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Or App at 374, 379,5 the Court of Appeals majoritys application of the pertinent

factors in this case effectivelyand wronglyplaced the burden on defendantto

prove that the victims identification was not reliable.

1) opportunity to view perpetrator

First, the majority concluded that the victims opportunity to view the

perpetrator weighed in favor of the reliability of her identification, because she

observed him from a relatively short distance, observed his attire and heard his

voice[,] and deliberately and surreptitiously moved her head in order to see

him, and her glance at him, although fleeting, was not the sort of casual

observation of which the court was dismissive in Classen. 239 Or App at 381-82

(internal quotation marks omitted). The majority was forced to acknowledge,

however, the abundance of undisputed competing factors demonstrating that the

victim viewed the perpetrator * * * in circumstances that certainly were not

optimal for viewing. Id. at 382. Specifically, in addition the victim making only

a fleeting glance,

[t]he observation occurred some time after 10:00 p.m. in a trailer thateither was unlit or was dimly lit; the observation was brief; [the victim]

was observing the man covertly, because he had put a pillow over herface to prevent her from seeing him; she saw him only in profile; at thetime she saw him, she was suffering from a painful and indeed life-threatening gunshot wound.

239 Or App at 381. It was also undisputed that it was extremely dark the night of

the shooting: according to the National Weather Service, at 10 p.m.the

approximate time of the shootingthere was no moon visible, it was in its last

5 SeeClassen, 285 Or at 232 (if unduly suggestive identificationprocedures are used, theprosecution must satisfy the courtthat the profferedidentification has a source independent of the suggestive confrontation orphotographic display) (emphasis added; internal quotation marks omitted); UnitedStates v. Wade, 388 US 218, 239-40, 87 S Ct 1926, 18 L Ed 2d 1149 (1967)(declining to order new trial based on the absence of counsel at lineup, withoutfirst giving the Governmentthe opportunity to establish by clear and convincingevidence that the in-court identifications were based upon observations of thesuspect other than the lineup identification).


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quarter, and it rose at midnight. (11/2/05 Tr 79).

As the dissent further pointed out, the victim was on her back on the floor

of the trailer at the time, and her only opportunity to view the perpetrator was

when he walked by the doorway of the trailer[.] 239 Or App at 393-94(quotingtrial court findings). As the dissent correctly concluded, the evidence

under this factor adds little to the scale to negate the suggestiveness of the pretrial

procedures. Id. at 395.6 Even the majority admits that some of these facts could

support an inference eitherin support of, or against, the strength of the

identification. Id. at 381 (emphasis added). Such a state of equipoise, however,

should weigh against the party bearing the burdeni.e., the state.

2) timing and completeness of the description

Second, the Court of Appeals majority held that the timing and

completeness of the victims description weighed in favor of the reliability of her

identification, because [h]er description of the perpetrators shirt and cap was

consistent, if not highly detailed[,] and she stated on numerous occasions that

she had recognized the perpetrator as the same man who had been in the campsite

earlier in the day. 239 Or App at 383. The majority was again, however, forced

6 Compare Brathwaite, 432 US at 114 (reliability of witnessobservation at apartment door was supported by fact that he observed suspect fromtwo feet away, for two to three minutes, saw him twiceeach time the dooropenedlooked directly at him, and the sun had not yet set, so it was not dark oreven dusk or twilight. Natural light from outside entered the hallway through awindow. There was natural light, as well, from inside the apartment.);Biggers,409 US at 193-94, 200-01 (finding no substantial likelihood of misidentificationin part because victim spent up to half hour with assailant under adequateartificial light in her house and under a full moon outdoors, and she saw him face-

to-face directly and intimately while he raped her); Simmons, 390 US at 385(there was little chance of misidentification, in part because [t]he robbery tookplace in the afternoon in a well lighted bank[,] [t]he robbers wore no masks[,]and the one identified as defendant was observed for periods ranging up to fiveminutes);see also United States v. Crews, 445 US 463, 472-73 and n 18, 100 S Ct1244, 63 L Ed 2d 537 (1980) (witness identification was independent ofdefendants illegal arrest, where the victim viewed her assailant at close range fora period of 5-10 minutes under excellent lighting conditions, and with nodistractions).


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to acknowledge the abundance of competing factsnamely, that the evidence

concerning timing and completeness of the description given by [the victim] in the

days and weeks after the crimes was somewhat sketchy, due to [her] extremely

serious physical injuries[,] none of [her] descriptions were of specific features,such as eye color, hair color, or distinguishing characteristicsand instead was of

only two pieces of clothingshe did not recognize photos of defendant in two

separate throw-downs,7 and [t]here were some inconsistencies in what she said.

239 Or App at 383.8

Contrary to the majoritys understatement, the record shows more than

some inconsistencies in the victims statements. Shortly after the shooting, the

victim first said she didnt know who had shot them[,] then that the perpetrator

had been a young man whom she had seen earlier in the day[,] then that the

helicopter pilot was the perpetrator. 239 Or App at 382.9 Two days after the

7 (11/08/05 Tr 90-92, 109, 130-31; 11/9/05 Tr 12, 16; 11/16/05 Tr 109-10, 116).

8 CompareBrathwaite, 432 US at 115 (degree of attention and

accuracy of description weighed in favor of reliability, where witness was aspecially trained, assigned, and experienced [police] officer on duty, who couldbe expected to pay scrupulous attention to detail[,] was unlikely to perceive onlygeneral features[,] and whose description was given * * * within minutes afterthe transaction and included [suspect]'s race, his height, his build, the color andstyle of his hair, and the high cheekbone facial feature and clothing [he] wore);

Biggers, 409 US at 200 (victims description to the police, which included theassailant's approximate age, height, weight, complexion, skin texture, build, andvoice, * * * was more than ordinarily thorough and she was no casual observer,but rather the victim of one of the most personally humiliating of all crimesrape); Crews, 445 US at 473 n 18 (attaching particular significance to the factthat respondent closely matched the description given by the victim immediatelyafter the robbery).

9 More specifically, the victim initially told the 911 operator she did notknow who shot her and that they wanted her truck, the latter of which sherepeated to the very first EMT on scene, Dirk Rogers. (10/20/05 Tr 67; ER-21,ER-23). While waiting in an ambulance for the Life Flight helicopter, she toldDeputy Charles Mapes that the shooter said he would not kill her because she hadnot seen his face, and although she described his clothing, she mentioned nothingabout the shooter being someone she had seen earlier that day. (10/21/05 Tr 58,61-62; 11/29/07 Tr 19-20). In the hospital emergency room, the victim saidseveral times that the only reason she was alive was she never saw his face or

Footnote continued


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shooting, in response to leading questions by police, she went back to claiming that

the perpetrator had been at their campsite earlier in the day[,]10 and then two

weeks later shifted back again, claiming it had been dark and she couldn't see

the perpetrator,11

and then several weeks after that switched back yet again,claiming that the man had been at the campsite earlier on the day of the

shooting.12 239 Or App at 382. Slightly more than a week later, although again

(continued)their faces. (11/18/05 Tr 88-89). She told an ICU nurse that the pilot of the LifeFlight helicopter was the shooter. (11/17/05 Tr 37, 44-45).

Additionally, although another EMT, Kathleen Morgan, testified that thevictim said she had seen the man who shot her earlier that day at the campground,

Morgan also testified that the victim said she had begged him not to shoot herbecause she had a little girl, but he shot her anyway. (10/20/05 Tr 170-71, 174,178-79). That was contrary to the victims trial testimonyand the states versionof eventsthat the victim was shot before that person ever came to her trailer.Additionally, another EMT, George Jennings, testified that the victim told him theshooter had fled in a yellow truckafterthe shooting. (11/9/05 Tr 130-31, 134-35).Again, that is contrary to the victims trial testimonyand her statements topolicethat she did not believe defendant had driven the truck to the camp thatnight, because it was very loud when he drove away that morning, and she wouldhave heard it that night. (10/19/05 Tr 123; 10/27/05 Tr 120; 11/8/05 Tr 54, 168-69; 11/15/05 Tr 29).

10 The victim made that statement to Detective Kipp on August 23,2003after an initial surgery in which a bullet fragment had been taken from thevictims abdominal area, her spleen and part of her pancreas and colon had beenremoved, and her stomach wound was left open and packed with gauze. (10/21/05Tr 37-38; 11/17/05 Tr 153-54, 158). At the time, the victim was on morphine anda powerful barbiturate sedative called Propofolintended to induce intentionalamnesia and make her forget her surgeryas well as dopamine to keep her bloodpressure up. (10/21/05 Tr 42-43; 11/17/05 Tr 155-56). The victim had a breathingtube down her throat, and her hands were restrained to keep her from pulling outthe tube and other lines, which she had attempted earlier. (10/21/05 Tr 49-51;11/17/05 Tr 158-59, 173; 11/08/05 Tr 89). Because she could not speak, DetectiveKipp asked questions he described as suggestive or leadingincluding whether theperson who shot her and killed her husband was someone she had seen earlier inthe day, and whether he had been in their tent, and she shook her head yes both

times. (11/08/05 Tr 89, 93, 101, 105).11 At this interviewon September 3, 2003the victim said she didntknow who it was[,] that she could not see him because it was very dark, and thepillow was over her face. (11/8/05 Tr 123-25; 11/9/05 Tr 6, 9; 11/17/05 Tr 15, 17-19, 38-39). Although the trial court did not mention or otherwise acknowledge thisinterview in its findings of fact, there is no dispute that it occurred.

12 At this interviewon September 22, 2003the victim actuallydescribed the man who came to her trailer after the shooting only as wearing the

same clothingas the man in their camp earlier that day, a dark shirt and baseballFootnote continued


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claiming it had been the same man who had been at the campsite earlier in the

day[,] the victim expressed concerns about her ability to identify him because

she had only seen his profile and declined to try to identify defendant in a line-

up.13

239 Or App at 382-83, 384. As for her certainty at trial, the trial courtfoundand the Court of Appeals majority agreedthat the victim was wrongin

insisting that she never declined to view a line-up, and she was wrongin insisting

that she never told police she saw the perpetrator only in profile, as discussed on

the next factor. (See footnote 13).

Although the negative facts identified by the majority clearly outweighed the

positive ones, the majority again ignored this evidentiary imbalance and wrongly

weighed this factor in the states favor. As the dissent correctly concluded,

[a]lthough [the victim] provided a description of the perpetrator on multiple

occasions relatively soon after the crimes, the generalness and variations in her

descriptions counsel against reliability and adds little to the scale to negate the

suggestiveness of the pretrial procedures. 239 Or App at 398.14

(continued)cap. (11/8/05 Tr 125, 154-56; 11/16/05 Tr 130-31, 158). She did not say it wasthe same man from earlier that day. (11/9/05 Tr 59-60, 68-69; 11/16/05 Tr 131,158, 163).

13 Police began this interviewon October 1, 2003by havingDetective Kipp go over the answers to the leading questions he had asked onAugust 23, 2003, even though the victim did not remember ever talking to him.(11/8/05 Tr 160-61,164-65, 171; 11/9/05 Tr 76-77, 80; 11/16/05 Tr 135, 139). Itwas in response to Detective Kipps recap that the victim said she believed the manwho shot her and her husband was the one in their camp earlier in the day, but shecould not swear it was the same one, because she had seen only his profile, and didnot get not a direct face-to-face look. (11/8/05 Tr 165-67, 169-71, 175; 11/9/05 Tr

84, 89). According to the detectives, the victim said she was concerned she wouldnot be allowed to testify in court, because seeing only a profile would not meet thelegal standard. (11/8/05 Tr 165-67, 169-70; 11/9/05 Tr 89). When Detective Kippasked her to look at a profile line-up, the victim said she had never done anythinglike that before, she thought it would be too difficult, and she could not do it.(11/8/05 Tr 176-77; 11/16/05 Tr 145).

14 See Kyles v. Whitley, 514 US 419, 444, 115 S Ct 1555, 131 L Ed 2d490 (1995) (the evolution over time of a given eyewitnesss description can befatal to its reliability).


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3) witness certainty

Third, on the certainty factor, the majority again relied on evidence that

the victim had on multiple occasions asserted that the shooter and the man in the

campground were one and the same person and also indicated at trial that shewas certain of her in-court identification of defendant as the perpetrator. 239 Or

App at 384. The majority was forced again, however, to acknowledge the

abundance of evidence to the contrarynamely, that the victims

confidence in her pretrial assertions that she recognized defendant may besomewhat undermined by the fact that she denied, at some points, that shehad seen the perpetrator, expressed doubts as to her ability to identify theperpetrator, and identified the helicopter pilot as the perpetrator, as well asher earlier unsuccessful attempts to identify the perpetrator in photo

throwdowns.239 Or App at 384. The majority does not address that the victim also was

certain at trial that she had never told detectives she had seen only a profile of

the perpetrator, that she insisted she never expressed doubt about making an

identification on that basis or declined to view a profile line-up.15 That was

contrary not only to the testimony of those same detectives,16 but alsoas noted

the trial courts own factual finding that the victim had seen only a profile of the

man at her trailer. (ER-28, 2(b)). Because that finding is supported by the

record, the majority is forced to agree that the victim saw only a profile of the

perpetrator, 239 Or App at 381, implicitly conceding that the victims certainty

at trial was flawed.17 As such, the majority wrongly weighed this factor in the

states favor.

15 (11/8/05 Tr 37, 51-52, 55, 59, 61).16 (11/8/05 Tr 165-67, 169-70, 175-77; 11/9/05 Tr 84, 89; 11/16/05 Tr

145).17 CompareBiggers, 409 US at 201 (reliability supported by fact that

the victim made no previous identification at any of the showups, lineups, orphotographic showings and [h]er record for reliability was thus a good one);Crews, 445 US at 473 n 18 (same, where the victim failed to identify anyoneother than respondent).


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4) lapse of time

Fourth, on the lapse of time factor, the majority was forced to agree with

the dissent that the passage two years and three monthsfrom the victims original

observation of the perpetrator in August 2003 until her in-court identification ofdefendant at trial in November 2005weighs against the reliability of that

identification. 239 Or App at 384, 399.18

5) failure to identify defendant in two photo throw-downs;learning defendants name from police; viewing newspaperphoto of defendant

Although the Court of Appeals majority relied on the victims weakened

physical condition to explain away her failure to identify defendant in two non-

suggestive photo throw-downs at the hospital, and her refusal to try to identify him

in a profile line-up, 239 Or App at 384-85, it ignored that the victim was in the

same physical condition each time she stated in the hospital, and on her way there,

that the perpetrator was the man from the camp earlier that dayon which the

majority placed so much emphasis in finding her in-court identification reliable.

The majority also failed to address the fact that police told the victimwhile

she was still in the hospitalthat they had a suspect in custody, and then identified

that person to her by defendants name.19 Nor does the majority address the effect

18 See Classen, 285 Or at 237 (state failed to prove reliability, in partbecause the witness did not see the [suggestive] photographs until seven monthsafter the only time she had seen the suspects);Biggers, 409 US at 201 (a lapse ofseven months between the rape and the confrontation * * * would be a seriouslynegative factor in most cases). CompareBrathwaite, 432 US at 115-16 (weighingtiming in favor of reliability, where witness description of [suspect] was given ** * within minutes of the crime[,] [t]he photographic identification took placeonly two days later and therefore [w]e do not have here the passage of weeks or

months between the crime and the viewing of the photograph); Simmons, 390 USat 385 (same, where witnesses were shown the photographs [at issue] only a daylater, while their memories were still fresh); Crews, 445 US at 473 n 18 (same,where only a week had passed between the victim's initial observation ofrespondent and her first identification of him).

19 This occurred on September 22 and October 1, 2003, respectively.(11/8/05 Tr 158-59, 179-80; 11/9/05 Tr 98; ER-26 to ER-27). CompareSimmons,390 US at 385 (reliability supported by fact that [t]here is no evidence to indicatethat the witnesses were told anything about the progress of the investigation and

Footnote continued


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of the newspaper article that included defendants photo and identified him as the

suspect, which the victim saw while in rehabilitation sometime after leaving the

hospital. 239 Or App at 370.20 Although the trial court ruled that this was not the

result of any state action (ER-28), that would pertain to the unduly suggestivecircumstances ofClassens first prongwhich is undisputed in this case Under

Classens second prong, the victims viewing of that photo nonetheless undermines

the reliability of her subsequent in-court identification of defendant.

In sum, rather than carrying the states burden, the pertinent factors

overwhelmingly demonstrate that the victims in-court identification was not

independently reliable. In holding to the contrary on such a lopsided record, the

Court of Appeals majority effectively relieved the state of its burden altogether.

And even the majoritys own conclusionthat consideration of some of the

factorssupportthe identification andsome do not, 239 Or App at 385

demonstrates a failure to recognize which party has the burden. As noted, even if

the pertinent factors were in equipoisewhich they clearly were notthat should

weigh againstthe state as the party bearing that burden.

C) The majority opinion wrongly diminishes the trial courts gate-keeping role.

An additional fallacy in the Court of Appeals majority opinion is the

suggestion that any gate-keeping error in admitting unreliable eyewitness

identification testimony can be cured at trial through cross-examination, expert

testimony, closing argument, and jury instructions. As if almost apologizing for

the weakness of its reliability analysis, the majority noted that in this case

(continued)FBI never suggested which persons in the pictures were under suspicion).CompareSimmons, 390 US at 385 (reliability supported by fact that [t]here is noevidence to indicate that the witnesses were told anything about the progress of theinvestigation and FBI never suggested which persons in the pictures were undersuspicion).

20 (11/4/05 Tr, Part II, 84-85; 11/8/05 Tr 8, 18; ER-27).


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the accuracy of the challenged identification was hotly contested at trial,and defendant had ample opportunity to controvert it. Any potential forjury adoption of a misidentification was substantially lessened by defensecounsels methodical cross-examination of [the victim] and the policeinvestigators, and defendants expert witnesss [sic] testimony thatvigorously challenged the jury to question the accuracy of theidentification. * * * As an additional safeguard, at defendants request

and largely in the terms that defendant requestedthe trial courtextensively instructed the jury with respect to the reliability of eyewitnessidentification.

239 Or App at 387 (citations omitted). This portion of the majoritys opinion

sends another wrong message to trial courtsnamely, that their gate-keeping role

is less than significant because any error in admitting unreliable eyewitness

testimony can be cured at trial.

Such message is directly contrary to the U.S. Supreme Courts rationale in

excluding identification testimony as a violation of due process, unless it is shown

to have a reliable source independent of the unduly suggestive procedures. As the

Court has explained, although

[t]he reliability of properly admitted eyewitness identification, like thecredibility of the other parts of the prosecutions case, is a matter for thejury[,] * * * in some cases the procedures leading to an eyewitnessidentification may be so defective as to make the identificationconstitutionally inadmissible as a matter of law.

Foster v. California, 394 US 440, 442 n 2, 89 S Ct 1127, 22 L Ed 2d 402 (1969)

(citingUnited States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967),

Gilbert v. California, 388 US 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967), and

Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967)) (emphasis

added).21 Underlying that rationale is the concern that, despite its inherent

21 See alsoBrathwaite, 432 US at 112 (Wade and its companion cases

reflect the concern that the jury not hear eyewitness testimony unless that evidencehas aspects of reliability.) (emphasis added);Biggers, 409 US at 199 ( in Stovallv. Denno, * * * we first gave notice that the suggestiveness of confrontationprocedures was anything other than a matter to be argued to the jury); Simmons,390 US at 382 (in Wade and Gilbert, the Court first departed from the rule thatthe manner of an extrajudicial identification affects only the weight, not theadmissibility, of identification testimony at trial); Wade, 388 US at 235 (eventhough cross-examination is a precious safeguard to a fair trial, it cannot be viewedas an absolute assurance of accuracy and reliability).


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unreliability, much eyewitness identification evidence has a powerful impact on

juries[,] which seem most receptive to, and not inclined to discredit, testimony of

a witness who states that he saw the defendant commit the crime.22

In that sense, eyewitness testimony is similar to [e]vidence perceived by layjurors to be scientific in nature[,]23 which possesses an unusually high degree of

persuasive power. State v. O'Key, 321 Or 285, 291, 899 P2d 663 (1995). In such

situations, [t]he function of the [trial] court is to ensure that the persuasive appeal

is legitimate before triali.e., [p]ropositions that a court finds possess

significantly increased potential to influence the trier of fact as scientific assertions

* * * should be supported by the appropriate scientific validation. Id. at 291-92

The same should be true for eyewitness identification testimony when the witness

has been subjected to unduly suggestive pre-trial identification procedures, as in

this case. Given the significant evidentiary weight jurors afford eyewitness

testimony, it is particularly important for a trial court to determine before trialthat

such weight is warranted, by ensuring that the testimony has been shown to be

reliable and independent of any improper suggestive procedures. As this court

recognized in Classen,

a wide variety of experienced persons consider and have considered the pre-trial identification as a crucial factor in the fair and accurate determination of

22 Watkins v. Sowders, 449 US 341, 352 and ns 3 and 4, 101 S Ct 654,66 L Ed 2d 549 (1981) (Brennan, J., dissenting) (citingE. Loftus,EyewitnessTestimony 8-19 (1979)). Seealso State v. Delgado, 902 A2d 888, 895, 188 NJ 48(2006) (Eyewitness identification can be the most powerful evidence presented attrial, but it can be the most dangerous too.); State v. Ledbetter, 881 A2d 290, 316,275 Conn 534 (2005), cert den 547 US 1082 (2006) (Eyewitness identificationevidence is particularly persuasive when the witness exhibits confidence in the

identification.); State v. Norrid, 611 NW 2d 866, 869, 2000 ND 112 (2000) (aneyewitness identification is powerful and compelling evidence in a criminalprosecution);People v. Daniels, 88 AD 2d 392, 453 NYS 2d 699, 703 (2d Dept1982) (Because of its persuasive power and inherent unreliability, eyewitnessidentification is always fraught with peril but when, as here, it is suspect, it isfrightening indeed.).

23 Evidence is scientific if it draws its convincing force from someprinciple of science, mathematics and the like. State v. Brown, 297 Or 404, 407,687 P2d 751 (1984).


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guilt or innocence, and a factor as to which certain kinds of error, oncecommitted, are particularly hard to remedyand peculiarly likely to lead tounjust results.

285 Or at 231 (emphasis added). That is precisely what occurred here. The Court

of Appeals majority opinion, however, wrongly undercut the importance of the

trial courts gate-keeping function in suggestive-identification cases, and is likely

to result in the very danger the U.S. Supreme Courtand this court in Classen

intended to prevent.

II) The state wrongly failed to disclose the suggestive identificationprocedures, which defendant discovered only at trial.

The states failure to disclose the above-described suggestive identification

procedures also violated defendants state and federal constitutional rights to

compulsory process and due process.

A) Statement of Pertinent Facts

As part of his motion to strike the victims in-court identification, defendant

argued that the state has committed another significant discovery violation by

failing to provide the defendant with any information about two prior

identifications by the witnessi.e., when police showed her a single photograph

of the defendant and an array of photographs in the district attorneys office on

the day she was brought to the pretrial hearing to see defendant. (11/8/05 Motion

to Strike, pp. 1-2, referencingBrady v. Maryland, 373 US 83, 83 S Ct 1193, 10 L

Ed 2d 215 (1963), which addressed disclosure of exculpatory evidence under

Fourteenth Amendment, and State v. Cartwright, 173 Or App 59, 72, 20 P3d 223

(2001), revd on other grounds 336 Or 408 (2004), which addressed the

compulsory-process clauses of Article I, 11, and Sixth Amendment).24 Although,

24 The motion to strike asserted that [d]efendant relies on, andincorporate[s] here by reference, the legal argument about the defendants right totimely discovery from the state, and the discussion of the possible sanctions thecourt can imposefrom a prior discovery-violation motion filed the week before,involving a statement from a purported jailhouse informant, and defendantsstatutory and state and federal constitutional rights to discovery. (Motion toStrike, pp. 2-3). In that motion defendant cited, inter alia,Brady and Cartwright.(Defendants 11/1/05 Motion to Preclude Testimony of Witness Jones, p. 2).


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as noted, the trial court denied defendants motion to strike (ER-28), it did not

expressly address the due-process/compulsory-process claim.

In the Court of Appeals, defendant argued that it was a denial of his

constitutional right to due process and compulsory process not to disclose that thevictim had been shown a single photograph of him, and been allowed to view him

at the pretrial hearing. (App Br 3, 38-42; Reply Br 5-6). The Court of Appeals

rejected this claim without discussion. 239 Or App at 365, 387.

B) The failure to disclose the suggestive-identification proceduresviolated defendants right to compulsory process and dueprocess.

The state violates a defendants right to compulsory process under Article I,

section 11, of the Oregon Constitution, and the Sixth Amendment to the United

States Constitution, by denying him evidence that is material and favorable to the

defense. United States v. Valenzuela-Bernal, 458 US 858, 867, 102 S Ct 3440, 73

L Ed 2d 1193 (1982) (so holding, under Sixth Amendment); State v. Mai, 294 Or

269, 272, 656 P2d 315 (1982) ([W]e construe the state compulsory process clause

in the same way as the Supreme Court construe[s] the virtually identical federal

counterpart[.]). The state violates a defendants due process right to the

production of potentially exculpatory evidence under the Fourteenth Amendment

by failing to disclose evidence that is material to guilt or punishment, and

favorable to the accused, or by acting in bad faith. Brady, 373 US at 87. On the

issue of materiality, defendant must show he was unable to obtain comparable

evidence by other reasonably available means. California v. Trombetta, 467 US

479, 489, 104 S Ct 2528, 81 L Ed 2d 413 (1984). In determining whether evidence

is material and favorable, the analysis is the same for both due process and

compulsory process. Pennsylvania v. Ritchie, 480 US 39, 56, 107 S Ct 989, 94 L

Ed 2d 40 (1987) (applyingBradys analysis to compulsory-process claim).


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1) Evidence that the victim was subject to unduly suggestiveprocedures was material and favorable to the defense.

Evidence that the victim was shown a single photograph of defendant, and

observed him in court at the pretrial hearing, was both material and favorable to the

defense because it provided grounds for impeaching her identification testimonyi.e., it supported the argument that the victim identified defendant as the person

who came to her trailer after the shooting because of those suggestive procedures,

not because he was there. United States v. Bagley, 473 US 667, 676, 105 S Ct

3375, 87 L Ed 2d 481 (1985) (Impeachment evidence, * * * as well as

exculpatory evidence, falls within theBrady rule.). Impeachment evidence is

favorable if, when disclosed and used effectively, it may make the difference

between conviction and acquittal[,] and material if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. 473 US at 676, 682. The evidence at

issue here satisfies those standards. The victims identification testimony was by

far the strongest evidence offered against defendant at trial. Evidence that her

testimony was contaminated by suggestive identification procedures shortly before

trial was clearly material and favorable to the defense, because it directly

undermined her credibility as a witness and the reliability of her identification.

2) Comparable evidence was not available to defendant.

Although the defense was fortunate enough to have discovered the

suggestive identification procedures through its cross-examination of the victim at

trial, that was not an adequate substitute for the required pretrial disclosure. The

purpose of the due-process disclosure requirement is the avoidance of an unfairtrial to the accused. Brady, 373 US at 87. Failing to disclose to the defense

before trial that the victim was subject to two separate suggestive identification

procedures, when her identification was so crucial, and waiting instead for the

happenstance of that information coming out on cross examination weeks into trial,


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was fundamentally unfair and deprived defendant an adequate opportunity to

prepare to meet that evidence and to make effective use of it.

3) The police acted in bad faith.

Alternatively, the failure to disclose the above-described evidence was theculmination of a pattern of bad-faith conduct by the police. The detective who

showed the victim the single photo of defendant, and brought her to court to see

defendant in person, testified that he intentionally decided not to inform the

defense of these procedures, because he assumed she already had seen his

photograph. (Tr 11/9/05 Tr 123-24). That constitutes a reasoned, thought-out, and

conscious choice not to disclose the suggestive procedures to the defense, for

which the prosecution is responsible.25 Also, that same detective was forced to

admit that he was not aware of the victim ever having seen and recognized a

photograph of defendant before the single one he showed her. (Tr 11/9/05 Tr 125).

The detectives intentional non-disclosure was not merely an isolated

incident, but part of a pattern of non-disclosure, cover-ups, attempts to alter

evidence, and general bad-faith behavior by the police throughout this case.26 Of

25 See, e.g., State v. Warren, 304 Or 428, 433 n 5, 746 P2d 711(1987) (with regard to investigation of crime, [t]he police are an arm of theprosecution for the purposes of the discovery statute) (quotingwith approvalState ex rel Wilson v. Thomas, 74 Or App 137, 141, 700 P2d 1045 (1985));State v. Koennecke, 274 Or 169, 175, 545 P2d 127 (1976) (declining to excusestates failure to produce revolvers for discovery on ground that officers refusedto make them available).

26 First, detectives already had omitted from their reports the victimsfailure to choose defendant the second time she was shown a photo lineup onSeptember 22, 2003, until defense counsel located that lineup in the volumes ofdiscovery and questioned why no report had been generated on it. (11/8/05 Tr

130-32; 11/9/05 Tr 16, 22-23).Second, at their follow-up interview of the victim on that date, detectives

forced hospital administrator Tammy Chartraw out of the room, after she madeobservations at the September 3, 2003 interview that would later prove damagingto the states case. (11/9/05 Tr 25-26; 11/17/05 Tr 27). At the September 3interview, the victim told detectives that after she was shot, a man went in and outof the trailer and put a cushion over her face, and she did not know who he was.(11/8/05 Tr 123-25; 11/9/05 Tr 6, 9; 11/17/05 Tr 15). In attempting to downplaythat interview, one of the detectives testified that it took less than five minutes, that

Footnote continued


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course, police testified that these attempted deceptions were all innocent.27 The

sheer number of these incidents, however, belies their explanations. They instead

demonstrate a pattern of bad-faith behavior by the police, which violated

(continued)the victim spoke mostly in whispers, he had to put his ear to her mouth to hear, hedid not understand the majority of what she said, and the interview ended when shefell asleep. (11/8/05 Tr 124-25; 11/9/05 Tr 10). Chartraw, however, testified thatthe interview lasted about 40 minutes, and that the victim was coherent, able toanswer questions, and understandable from an arms length away, and herstatements were not disjointed or congruent. (11/17/05 Tr 16-19). According toChartraw, the detectives put questions to the victim over and over in differentforms, exploring in some depth her opportunity to see after she was shot, thevictim consistently said she could not see her attacker, both because of the pillowover her face and because it was dark, and she was very apologetic, saying shecould not help because she had been unable to see her attacker and could not

identify anyone. (11/17/05 Tr 17-19, 38-39). Chartraw also testified that thevictim did not fall asleep during the interview; rather detectives left because itappeared they had covered all they wanted and the victim began to tire. (11/17/05Tr 19-20).

Third, the police provided the defense with no notes of any of theirinterviews with the victim, with the lead detective claiming he took none and didnot tape-record her statementsdespite taking about 100 pages of notes wheninterviewing more peripheral witnesses, and taping everything defendant said,except in an interview in the forest. (11/9/05 Tr 37-40). Another detective presentat the September 22 and October 1 interviews of the victim testified that he tooknotes, but they were destroyed in a flood at the police station. (11/16/05 Tr 116,131-34).

Fourth, the lead detective admitted at trial that, in preparation for the juryview of the crime scene at the campground, he moved the picnic table atdefendants campsite more than 52 feet away from the firepit where it had been onAugust 22, 2003. (11/2/05 Tr 38-39). According to that detective, from thevictims trailer or campsite, it was difficult to see defendants campsite, andmoving the table more than 50 feet made it easier for someone to see the victimscamp from the table. (11/2/05 Tr 42-45). In other words, the original position ofthe table contradicted the victims testimony that she could see defendant watchingthem from the table at his campsite, whereas the position to which the detectivemoved the table supported her testimony on that point.

27 Detectives claimed that they simply forgot to include in their reportsthe victims second failure to choose defendant from a photo lineup (11/8/05 Tr

132); they forced Chartraw out of the victims hospital room at the September 3,2003 interview because the victim appeared uncomfortable talking about theshooting with so many people present (11/9/05 Tr 25-26); and the lead detectiveclaimed that he moved the table to where he thought it was the day of the shooting(11/2/05 Tr 38). At a pretrial hearing, however, the lead detective first testifiedthat he asked Chartraw to leave on September 3 because he knew the victim wouldbe talking about having sex with her husband on the picnic table, even though thatdetective was forced to admit he did not learn until the September 22 interviewabout the victims having sex just before the shooting. (11/9/05 Tr 27-29).


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defendants due-process right to exculpatory evidence. Although normally this

court presumes the trial court found the facts underlying such a claim consistent

with its ultimate conclusion,Ball v. Gladden, 250 Or 485, 487, 443 P2d 621

(1968), that presumption should not apply where, as here, the trial courts letterruling did not even address defendants discovery claim.

III) Defendant was wrongly denied access to evidence about similar,nearby shootings.

Defendant also was wrongly denied his right to due process and

compulsory process when the trial court refused to allow defense counsel access

to investigation records involving a similar double-murder shooting in a nearby

area of the forest that occurred while defendant was incarcerated.A) Statement of Pertinent Facts

Defendant filed a pretrial motion for the production of certain investigative

records, reports and documents contained within the files and records of Lane

County Sheriffs Department, Lane County Medical Examiners office and the

Oregon State Police [(OSP)] Crime Lab[,] and for an order allowing

inspection of these records by Defendant. (8/25/04 Motion for Production, p. 1).

In a supporting affidavit, one of defendants attorneys asserted:

On or about July 1, 2005, Steven and Jennette bothfrom Oakridge, Oregon, were shot and killed in a campground nearCampers Flat not far from Hills Creek Reservoir and also located in theWillamette National Forest. There appear to be striking similarities betweenthe shootings at Campers Flat and the shootings [defendant] is charged withhaving committed at Briggs Camp.

(Affidavit of Counsel, pp. 1-2).28 As a further offer of proof, defendant presented a

28

After the OSP and the Lane County Deputy Medical Examiner filed amotion to quash the subpoenas, defendant filed a response citing, among othersources, his constitutional right to discovery, a component of his due process rightto fair trial. (Defendants 8/29/05 Response, p. 6). Defendant asserted that[u]nder federal Due Process, the prosecution must provide information ofevidence favorable to an accused * * * where the evidence is material either toguilt or punishment, irrespective of the good faith or bad faith of the prosecution.(Defendants Response, p. 6, quoting Brady v. Maryland). Defendant also arguedthat [t]his is not a request for third-party discovery because the State of Oregonis prosecuting [defendant], and the State of Oregon has the material we seek.

Footnote continued


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newspaper article about the murderswhich was received as an

exhibit (see ER-29)and testimony from Lane County Sheriffs Detective Randy

Eshelman, who had issued press releases and talked to reporters about that case,

and testified only about information that was reported in the press or otherwisemade public.29

The trial court ruled that defendant properly subpoenaed the documents in

question, but as to whether this information [should] be turned directly over to

[defense] counsel, a showing to do that hasnt been made. (8/31/05 Tr 57-58).

The court ordered the documents turned over forin camera review, based on the

(continued)(Defendants Response, p. 10). Defendant further asserted that he has aconstitutional right to subpoena witnesses and evidence, citingthe right tocompulsory process to obtain witnesses in his favor under Article I, section 11,and the Sixth Amendment. (Defendants Response, pp. 6-7). Defendant repeatedthese arguments at the motion hearing. (8/30/05 Tr 19-20, 26, 38).

29 According to Detective Eshelman, the victims in thecase were shot to death on or about

Samuel Adam Lawson brief

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