State's brief re: Samuel Adam Lawson

8/3/2019 State's brief re: Samuel Adam Lawson

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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

Court No. 03CR1469FE

CA A132640

SC S059234

_______________

BRIEF ON THE MERITS OF

RESPONDENT ON REVIEW, STATE OF OREGON

_______________

Review of the Decision of the Court of Appeals

on Appeal from a Judgment of the Circuit Court for Douglas County

Honorable RONALD POOLE, Judge

_______________

Opinion Filed: December 15, 2010

Before: Wollheim, P.J., Brewer, C.J. and Sercombe, J.

_______________

DANIEL J. CASEY #952277

Attorney at Law

P.O. Box 82818

Portland, OR 97282-0818

Telephone: (503) 774-3283

Email: [email protected] for Defendant-Appellant

JOHN R. KROGER #077207

Attorney General

ANNA M. JOYCE #013112

Solicitor General

JANET A. KLAPSTEIN #782753

Assistant Attorney General1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (503) 378-4402

Email: [email protected]

[email protected]

Attorneys for Plaintiff-Respondent

10/11

October 21, 2011 12:49 PM


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TABLE OF CONTENTS

First Question Presented............................................................................................2

First Proposed Rule of Law ......................................................................................2

Second Question Presented.......................................................................................3Second Proposed Rule of Law .................................................................................3

Summary of Argument ..............................................................................................4

Factual Background ...................................................................................................6

A. During a camping trip, the victims encountered defendant at

their camp. Shortly after being shot, the surviving victim then

identified defendant as the same person who shot her and killed

her husband. .....................................................................................................8

B. At trial, identified defendant as the man who shot her andkilled her husband. ........................................................................................ 11

C. Defendant moved to strike in-court identification, a

motion that the trial court denied after finding that that

identification was reliable. .......................................................................... 12

D. After the trial court denied defendants motion to exclude

in-court identification, defendant presented additional

evidence attempting to impeach her in-court identification..................14

ARGUMENT ............................................................................................................ 16A. The Due Process Clause offers a limited protection against

unreliable eyewitness identification resulting from improper

and suggestive police conduct. ................................................................... 18

B. Because the two identifications that defendant claims were

improper were neither identifications nor unnecessarily

suggestive, defendants claims fail at the outset. .................................... 23

C. Because the question is one of reliability, this court should

evaluate whether the state demonstrated that the in-court

identification had a source independent of any suggestive

identification under a preponderance of the evidence standard. ..........29

D. The state proved that in-court identification of

defendant had sources independent of any suggestive

identifications, and the trial court properly allowed the jury to

consider the remaining questions of the weight and credibility

to give testimony. ............................................................................ 33


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1. Factual background of the shooting and

subsequent identifications. ................................................... 34

2. had an opportunity to get a clear view of

defendant after he shot her and came into the

trailer to find her car keys. ................................................... 41

3. descriptions of defendant following the

event were (1) immediate; (2) consistent; and (3)

detailed..................................................................................... 42

4. certainty in identifying defendant in court

was absolute. ........................................................................... 43

5. The two-year lapse of time further supports that

identification was independent of any

unnecessary suggestion......................................................... 45

6. Defendants reliance on inconsistencies in

recounting of her attack do not render her in-court

identification constitutionally unreliable. .......................... 46

II. Defendants remaining claims provide no basis for reversal. ...............49

Third Question Presented ........................................................................................ 50

Third Proposed Rule of Law .................................................................................. 50

Fourth Question Presented ...................................................................................... 50

Fourth Proposed Rule of Law ................................................................................ 51Fifth Question Presented ......................................................................................... 51

Fifth Proposed Rule of Law.................................................................................... 51

Sixth Question Presented ........................................................................................ 51

Sixth Proposed Rule of Law ................................................................................... 51

ARGUMENT ............................................................................................................ 52

A. Evidence about other unsolved shootings is not relevant...................... 52

B. Absent a showing of prejudice, defendant cannot obtainreversal of his convictions based on the trial courts ex parte

contact with the jurors. ................................................................................. 56

CONCLUSION ......................................................................................................... 59


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TABLE OF AUTHORITIES

Cases Cited

Addington v. Texas,441 US 418, 99 S Ct 1804, 60 L Ed 2d 323 (1979) ...........................32

Ball v. Gladden,

250 Or 485, 443 P2d 621 (1968).......................................................34

Colorado v. Connelly,

479 US 157, 107 S Ct 515, 93 L Ed 2d 473 (1986) ...........................32

Dowling v. United States,

493 US 342, 110 S Ct 668, 107 L Ed 2d 708 (1990) .........................19

Duncan v. Louisiana,391 US 145, 88 S Ct 1444, 20 L Ed 2d 491 (1968) ...........................21

Fillipon v. Albion Vein Slate Co.,

250 US 76, 39 S Ct 435, 63 L Ed 853 (1919)....................................57

Foster v. California,

394 US 440, 89 S Ct 1127, 22 L Ed 2d 402 (1969) .........21, 22, 26, 27

Holmes v. South Carolina,

547 US 319, 126 S Ct 1727, 164 L Ed 2d 503 (2006) .......................54

Jackson v. Denno,378 US 368, 84 S Ct 1774 (1964) ...............................................31, 32

Lego v. Twomey,

404 US 477, 92 S Ct 619, 30 L Ed 2d 618 (1972) .......................31, 32

Lisenba v. California,

314 US 219, 62 S Ct 280, 86 L Ed 166 (1941)..................................18

MacPherson v. Department of Administrative Services,

340 Or 117, 130 P3d 308 (2006).......................................................19

Mason v. Brathwaite,432 US 98, 97 S Ct 2243, 53 L Ed 2d 140 (1977) .................20, 26, 30

Neil v. Biggers,

409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972) .... 27, 30, 41, 42, 43,

44, 45

Rogers v. United States,

422 US 35, 95 S Ct 2091, 45 L Ed 2d 1 (1975) .................................57


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Rushen v. Spain,

464 US 114, 104 S Ct 453, 78 L Ed 2d 267 (1983) ...........................57

Simmons v. United States,

390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968) .....................20, 23

State v. Carlson,311 Or 201, 808 P2d 1002 (1991).....................................................33

State v. Cazares-Mendez,

350 Or 491, 256 P3d 104 (2011).......................................................55

State v. Classen,

285 Or 221, 590 P2d 1198 (1979)............12, 21, 23, 24, 30, 41, 42, 43

State v. Crosby,

342 Or 419, 154 P3d 97 (2007).........................................................58

State v. Garrett,350 Or 1, 248 P3d 965 (2011)...........................................................52

State v. Johnson,

313 Or 189, 832 P2d 443 (1992).......................................................52

State v. Mayfield,

302 Or 631, 733 P2d 438 (1987).......................................................54

State v. Miller,

300 Or 203, 709 P2d 225 (1985),

cert den, 475 US 1141 (1986) ...........................................................32

State v. Rogers,

330 Or 282, 4 P3d 1261 (2000)...................................................53, 58

State v. Wilson,

323 Or 498, 918 P2d 826 (1996),

cert den, 519 US 1065 (1997) ...........................................................56

Stovall v. Denno,

388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967) .........................20

United States v. Booker,

543 US 220, 125 S Ct 738, 160 L Ed 2d 621 (2005) .........................21

United States v. Crews,

445 US 463, 100 S Ct 1244, 63 L Ed 2d 537 (1980) .........................28

United States v. Gagnon,

470 US 522, 105 S Ct 1482, 84 L Ed 2d 486 (1985) .........................57


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United States v. Wade,

388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967) .............19, 20, 30

Watkins v. Sowders,

449 US 341, 101 S Ct 654, 66 L Ed 2d 549 (1981) ...........................21

Constitutional & Statutory Provisions

OEC 104 .....................................................................................................33

OEC 401 ...............................................................................................52, 55

OEC 403 .........................................................................................52, 53, 54

OEC 804(3) ................................................................................................55

Or Const, Art I, 10 ...................................................................................27

Or Const, Art I, 42(1)(a) ..........................................................................27

ORCP 59 D.................................................................................................58

US Const Amend V ....................................................................................57

US Const Amend VI ...................................................................................19

US Const Amend XIV ......................................................................4, 18, 57

Other Authorities

FRCP 43 .....................................................................................................58

ORAP 9.20(4).............................................................................................50


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RESPONDENTS BRIEF ON THE MERITS

_______________

A jury convicted defendant of aggravated murder, attempted murder,

and first-degree robbery after he shot and killed Noris and critically

injured Noriss wife, . The couple encountered defendant using

their tent at their campground spot. That encounter gave the

opportunity to observe defendant for about 40 minutes in the daylight. Later

that evening, someone shot Noris and After being shot and before

reaching a hospital, told several people that the person who shot her

and Noris was the same person she had seen that day in the campground:

defendant. She repeated that identification to a detective shortly after being

hospitalized. Defendant admitted being the individual who and Noris

encountered in the campground.

Two years laterand shortly before trial saw defendant in

court at a hearing, and later that same day saw a photograph taken of him on

the day of his arrest. At trial, identified defendant as the person who

shot her and killed her husband. Defendant now contends that in-

court identification was irreparably tainted by two unduly suggestive

identification procedures: having seen him both at the pre-trial hearing and

in the single photograph.


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This case thus presents two questions: the first, whether, years after

having identified her assailant and shortly before trial, a victim seeing the

defendant in court and seeing a photograph of him constitutes an

unnecessarily suggestive identification. It does not. If this court concludes

that law enforcement did engage in unnecessarily suggestive identifications,

this case presents the further question whether a victims earlier, repeated,

and largely consistent descriptions of defendant were so irreparably tainted

by a later suggestive identification that, to protect a defendants due-process

rights, the in-court identification must be excluded.1

First Question Presented

When a victim sees a defendant in court at a pretrial hearing and

views a photo of him in preparation for trial, and yet is not asked to make an

identification of any kind, has law enforcement engaged in an unnecessarily

suggestive identification process?

First Proposed Rule of Law

Because it is the role of juries to determine what weight and

credibility to give evidence, absent a showing that an eyewitness

identification is both suggestive and unnecessarily so, juries are entitled to

1This case also presents several other claims of error. Because

the primary issue relates to eyewitness identification evidence, the state

focuses its briefing on that issue. As explained later, the state largely adopts

its lower-court briefing on the remaining claims of error.


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hear evidence of an in-court identification. As applied here, the victim was

not called upon to make an identification during the pre-trial hearing or

when she viewed the single photograph. Necessarily then, there was no

identification, much less a suggestive one.

Second Question Presented

In its role as gatekeeper, a trial court must determine whether an in-

court identification that is preceded by a suggestive out-of-court

identification process created a very substantial likelihood of irreparable

misidentification. If the court determines that the in-court identification is

sufficiently and independently reliable, the jury must then determine what

weight and credibility to give to the in-court identification.

a. What standard of proof must the state meet to show that the

suggestive identification process did not create a very substantial likelihood

of irreparable misidentification?

b. Did the evidence demonstrate that the suggestive identifications

did not taint the in-court identification so as to create a very substantial

likelihood of irreparable misidentification?

Second Proposed Rule of Law

a. A suggestive identification process calls into question the

reliability of a subsequent in-court identification. The proper burden of


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proof for questions related to the reliability of evidence is a preponderance

of the evidence.

b. Where the victim observed the defendant in a lengthy interaction

prior to the crime, saw him at close range and spoke to him during the crime,

repeatedly identified defendant immediately after the crime and before being

exposed to any suggestive procedure, the trial court, in its role as gatekeeper,

properly allows the identification evidence to go to the jury.

Summary of Argument

The Due Process Clause of the Fourteenth Amendment guarantees a

criminal defendant the right to a fair trial. In the context of eyewitness

identifications, due process provides narrowly circumscribed protections

against tainted eyewitness identifications. More specifically, due process

requires exclusion of eyewitness identifications where law enforcement

engaged in unnecessarily suggestive identification techniques, and the

resulting identification was so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification. That standard

both enables the court to fulfill its role as gatekeeper of tainted evidence

while at the same time preserving the critical role that juries play in

determining the weight and credibility to give the evidence.

In this case, there was neither an unnecessarily suggestive

identification, norto the extent that this court rejects that contentiondid


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any suggestive identification give rise to a very substantial likelihood of

irreparable misidentification. The victim, repeatedly and fairly

consistently identified her assailant as the same person who she had

encountered earlier in the day, for 40 minutes, in the daylight and in

circumstances that caused her to pay close attention to him. Defendant

acknowledges being that person whom she encountered earlier in the day.

Two years later during trial preparation, she observed defendant at a pretrial

hearing and saw a single photograph of him. Law enforcement did not ask

her to identify defendant at that time, nor did do so.

Yet it is those two eventsseeing defendant at a hearing and seeing a

single photo of himthat defendant maintains constitute the unduly

suggestive identifications that tainted later in-court identification of

defendant. But defendant overlooks that no identification occurred at all

during either of those events. The identifications made occurred just

after the shooting, not two years later during trial preparation. So framed,

the foundation of defendants argument falls away.

Even if defendant were correct and the officers engaged in

identification techniques that could be deemed unnecessarily suggestive,

nothing about the identifications created a substantial likelihood of

irreparable misidentification. As with all preliminary questions of

admissibility of evidence, the state must prove that the identification was


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untainted by any suggestive identification process by a preponderance of the

evidence. The state did so here. As noted, identified the man that shot

her as being the same man who she had encountered earlier in the day in the

campground: defendant. She repeated that identification on several

occasions, and described defendants clothes, his truck, his gait, and his

voice. Those early and largely consistent identifications demonstrate that

in-court identification was independent of any suggestive

identification processes that occurred two years later.

To the extent that there were inconsistencies in her descriptions or

recollection, those inconsistencies were matters for the jury to weigh. The

jury heard expert testimony about the fallability of eyewitness identifications

and the trial court instructed the jury about how it should consider the

credibility of eyewitness identifications. Unless and until there exists a

substantial likelihood of irreparable mistaken identification, the jury

armed, as it was here, with testimony about the inconsistencies, expert

testimony, and jury instructions on eyewitness identificationsmust be the

ultimate decision-maker regarding the weight and credibility to give any

identifications. The trial court properly allowed the jury to do so here.

Factual Background

As noted, defendants convictions in this case are based upon the

nighttime shooting of Noris and Given the seriousness of the


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offenses, the trial was lengthy and the evidence voluminous. Because the

primary issue in this appeal relates to what defendant characterizes as an

unduly suggestive identification and the effect that that identification had on

subsequent in-court identification, the state focuses on the facts

related to that issue: namely, the early identifications that made, what

defendant characterizes as the later suggestive identification processes, and

the trial courts extensive findings and conclusions that any suggestive

identification process did not irreparably taint identification of

defendant so as to preclude the jury from hearing the evidence. The state

briefly outlines the events surrounding the crimes, but largely reserves

discussion of the specific facts surrounding the eyewitness identification

until argument below.

As an initial matter, however, one point bears mention: in both his

facts and his legal argument, defendant recounts the facts from throughout

the trial. He neglects to note, however, that he moved the court to strike the

identification mid-way through the trial, on November 10, 2005. (ER 25).

Some of the evidence that defendant relies on came in afterthe trial court

denied his motion. And defendant never renewed his motion to strike

in-court identification after that additional evidence came in.

Accordingly, those factselicited after the court ruledcannot be

considered to determine whether the trial court properly denied defendants


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motion to suppress in-court identification. To make clear which

facts were a part of the trial courts determination and which were not, the

state separates the facts considered by the court when it ruled from the

unconsideredand therefore largely irrelevantfacts.

A. During a camping trip, the victims encountered defendant at their

camp. Shortly after being shot, the surviving victim then

identified defendant as the same person who shot her and killed

her husband.

On August 21, 2003, Noris and went on an annual trip to

Briggs Camp near Stump Lake, at a campsite where Noris had set up a tent

earlier in the week. (11/4/05 PM Tr 14, 16).2

Defendant and the

were the only people present in an otherwise empty campground. (11/4/05

PM Tr 19). When the couple arrived to the campsite at around 12:30 in the

afternoon, they found that defendant had moved into their tent. (11/4/05 PM

Tr 17-25). Defendant explained to Noris that he thought that the tent had

been abandoned. (11/4/05 PM Tr 27). He agreed to move on, and walked to

his truck. (11/4/05 PM Tr 28). He moved to a nearby campsite, sat there for

a period of time, and then drove off. (11/4/05 PM Tr 33-36). had

about 40 minutes during this encounter to observe defendant. (11/4/05 PM

Tr 37).

2 The November 4, 2005 transcript is divided into two parts:

morning testimony and afternoon testimony. The state differentiates

between the two by a PM designation for the afternoon testimony.


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Later that night, around 10 pm, went inside the trailer.

(10/20/05 Tr 123; 11/4/05 PM Tr 50). As she closed a window, she was

shot and critically wounded. (11/4/05 PM Tr 51-52). As Noris was talking

to 9-1-1, he too was shot, killing him almost instantly. (11/4/05 PM Tr 55-

56). After Noris was shot, the assailant came into the trailer in an apparent

effort to find the keys the truck. (11/4/05 PM Tr 57). Not knowing

that Noris was already dead, begged the man not to kill them. (11/4/05

PM Tr 58). The man asked if she had seen his face. (11/4/05 PM Tr

58). told him she had not, and promised she would never identify him.

(11/4/05 PM Tr 58-59). The person reached over her, took a pillow, and put

it over her head. (11/4/05 PM Tr 58).

Because something about the man seemed familiar, decided to

try and look at her assailant. (11/4/05 PM Tr 60). At the moment she saw

his face, she recognized him as the man that had been in the campsite earlier

that day: defendant. (11/4/05 PM Tr 60). Defendant then left. (11/4/05 PM

Tr 61).

In her initial conversations with a 9-1-1 operator, was afraid that

her assailant might be nearby. (11/4/05 PM Tr 61). She therefore told the 9-

1-1 operator that he was gone and that she did not know who shot her.

(11/4/05 PM Tr 61; ER 21). Once she was in an ambulance, she disclosed

some details of her assailant. After she was told that Noris had been killed,


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she told several different emergency personnel that the person who shot her

was the same man who had been in the campground earlier that day.

(11/4/05 PM Tr 67).

During her hospitalization, was unable to view photo

throwdowns that officers showed her because medication was blurring her

vision. (11/4/05 PM Tr 77). However, she repeated on several occasions

that the man who shot her was the man who had been in their campground:

defendant. (11/4/05 PM Tr 67; 11/8/05 Tr 155, 166, 184). On another

occasion, she said she did not know who shot her, but about three weeks

later clarified that she had seen her assailants face at least in profile and

recognized him as the man from the campground. (11/8/05 Tr 154-55, 165;

11/17/05 Tr 18). In late September 2003, while still hospitalizedand after

had already identified defendantDetective Merrifield told that

police had a man in custody. (11/8/05 Tr 158, ER 27). At a later point in

October 2003, he told defendants name. (11/8/05 Tr 180, ER 27).

Also in October 2003, transferred to rehabilitation center.

(11/8/05 Tr 84, 181). During her two-month stay, a care worker showed her

a newspaper photograph of defendant. (11/4/05 PM Tr 84-85; 11/8/05 Tr 8,

18). The newspaper apparently identified him as the individual who had

been arrested for the crimes. (11/8/05 Tr 8). was not asked to make

an identification based on that photograph. (11/9/05 Tr 54-55).


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B. At trial, identified defendant as the man who shot her and

killed her husband.

At trial, positively identified defendant as the person who had

been in their campsite that day, and who demanded the keys to their truck

that night. (11/4/05 PM Tr 57, 70). She testified that she had absolutely

no doubt that defendant was the individual who shot her. (11/4/05 PM

Tr 70).

She also testified about two events that form the basis for defendants

claim that in-court identification was tainted. testified that

about a month before trialor two years after had been shot

Detective Merrifield brought to the courthouse to observe a pre-trial

hearing. (11/8/05 Tr 80). Detective Merrifield elected to take to court

because she was very fearful of having to face the man who murdered her

husband and shot her for the first time after this incident happened[.]

(11/9/05 Tr 125-26). He believed that this would help her in the process of

having to get up and do this in front of people that she did not know and

relive this incident again. (11/9/05 Tr 125-26).

Later that day, Merrifield showed a single photograph of

defendant wearing a hat.3

(11/8/05 Tr 18).

3The trial court found as fact that it was after had come to

court that she saw the single photograph of defendant. (ER 27).


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also testified that about a month before trial, when she was with

Merrifield,the detective was flipping through a notebook looking for photos

of the campsite. (11/8/05 Tr 15). She noticed a throwdown in his notebook

that included defendants photograph. (11/8/05 Tr 15). Without prompting,

she volunteered, Thats him. (11/8/05 Tr 15).

C. Defendant moved to strike in-court identification, a

motion that the trial court denied after finding that that

identification was reliable.

In response to disclosures about attending a court hearing and

being shown a single photograph, defendant filed a mid-trial motion to strike

her in-court identification. (11/10/05 Tr 2; ER 25). Defendant argued that

in-court identification was irreparably tainted by the police bringing

to court and by showing her a single photograph. (11/10/05 Tr 14).

Defendant affirmatively stated that he did notwant the court to order a

mistrial, but only to order in-court identification stricken.4

(11/10/05

Tr 14-15).

The trial court examined and applied the criteria articulated in State v.

Classen, 285 Or 221, 232-33, 590 P2d 1198 (1979), and concluded that

4At the motion hearing, defense counsel stated they were not

moving to restrict testimony concerning her out-of-court statements about

identification, but we are focusing on the in-court identification.

(11/10/05 Tr 3-4). He continued, We are well into this. * * * [We are] into

our 8th week, 7th week of this case. * * *. [W]e dont want a mistrial. We

want to resolve this case. (11/10/05 Tr 14-15).


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in-court identification was reliable and sufficiently independent of

any suggestive police identification techniques. (ER 28). The court first

concluded that three events had the potential to taint the identification: (1)

Detective Merrifield telling in September 2003 that they had defendant

in custody; (2) seeing defendant at the pretrial hearing; and (3) seeing

the single photograph of defendant. (ER 28).

Despite these factors, the trial court concluded that in-court

identification was sufficiently independent to warrant continued admission:

It is the opinion of the court that Ms. in-court

identification of the defendant is based on her personal

observations of the defendant on August 21, 2003. Ms.

had a significant period of time to observe the defendant during

the initial contact, and she took note of his features and

demeanor. Later, after the shooting, Ms. saw the

defendants profile from a relatively short distance, observed

his attire, and heard his voice. She is certain that the man that

was in their campsite the morning of August 21, 2003, is thesame man that shot her husband and herself later that

evening.

(ER 28). The court found that any other questions as to the reliability and

probative value of her identification were questions that should be resolved

by the jury. (ER 28). The court found that the news photograph, even if

suggestive, was not attributable to any action by state agents. (ER 28).


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D. After the trial court denied defendants motion to exclude

in-court identification, defendant presented additional evidence

attempting to impeach her in-court identification.

After the trial court denied defendants motion to exclude in-

court identification of defendant, the jury heard additional evidence relating

to earlier descriptions of her assailant. For instance, an emergency

room nurse testified that when first came into the emergency room,

said that she believed the reason she had not been killed was because

she had not seen her assailants face. (11/18/05 Tr 88-90). A hospital

employee, Tammy Chartraw, testified that she had heard, second hand, that

had identified the Life Flight pilot as the man who shot her. (11/17/05

Tr 44). Chartraw also testified that during her time in the hospital, was

very apologetic because she wanted to help but she couldnt provide

information about who had committed the crime. (11/17/05 Tr 39).

Chartraw believed that could not identify who shot her because she

had a pillow over her face and it was dark. (11/17/05 Tr 38-39).

Defendant also presented evidence from Daniel Reisberg, an expert in

assessing the accuracy of eyewitness identification. He testified that medical

trauma and stress can block a persons ability to consolidate memory

because the body is focusing its energies on managing the stress. (11/18/05

Tr 52-53). He warned about the process of creating memories by repeating

questions, coaching, and using leading questions. (11/18/05 Tr 58-80).


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In response, the state presented its own expert, Dr. George Suckow.

Dr. Suckow explained that emotion tends to reinforce the memory for that

event that produced the emotion. (11/29/05 Tr 126). He explained that,

although memories are fallible, when one has memories that are associated

with strong emotional input, youre very likely to remember that pretty

accurately, because it diverts your consciousness fully to that subject, and

consciousness is necessary to make memory. (11/29/05 Tr 127). He also

testified that ones memory about a traumatic event can actually improve

over time: Its not a situation where youre manufacturing things; its a

situation where youre recalling things that you simply werent paying

attention to at the time. (11/29/05 Tr 132).

Defendant relied heavily on his experts testimony during closing

arguments. He highlighted Dr. Reisbergs testimony that

the statements made close in time after the event are what you

want to look at. Not the statements that are later after theres

been suggestions or leading questions or all of these other

factors that can affect memory. You want to look at the

statements close in time to see if theyre, number one,

consistent; do they make sense; are they off the wall? Thats

going to give you the best idea of whats going on at the time.

(12/1/05 Tr 127). Defendant maintained that the states case was built upon

a foundation of sand, that foundation being identification:

Now, with the greatest respect for [ she is a genuine

victim, an absolute, victim, and her husband, and I cannot

emphasize that enough. And I * * * have never, inferred in any


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way that shes lying. [ doesnt know what the truth is any

more. She has been so contaminated by the police in this case.

(12/1/05 Tr 78).

At defendants request, the trial court instructed the jury that it must

consider numerous factors bearing on the credibility of eyewitness

identification testimony:

You have heard testimony of eyewitness identification. In

deciding how much weight to give this testimony, you may take into

account the various factors mentioned in these instructions concerning

the credibility of witnesses. In addition to these factors, in evaluating

eyewitness identification testimony, you may also take into account

the capacity and opportunity of the eyewitness to observe the offender

based on the length of time for observation and the condition at the

time of observation; whether the identification was a product of the

eyewitnesss own recollection or was the result of subsequent

influence or suggestiveness; any inconsistent or consistent

identifications made by the eyewitness; the passage of time between

the event and the identification; whether the witness had known or

observed the offender at earlier times; and the totality of

circumstances surrounding the eyewitnesss identification.

(12/2/05 Tr 134-35).

The jury convicted defendant of aggravated murder, attempted

aggravated murder, and first-degree robbery. (12/12/05 Tr 6).

ARGUMENT

Defendant, amici, and the state all agree that when law enforcement

orchestrates an identification process that unnecessarily and improperly

suggests that a particular person is guilty, and a victim later identifies the

defendant in court, the Due Process Clause requires trial courts to serve as


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gatekeepers to ensure that the in-court identification is independent of any

suggestive identification procedures. But that is where the agreement ends.

The parties disagree whether law enforcement engaged in any improper

identification techniques and disagree how a trial court decides whether the

in-court identification is sufficiently attenuated from any suggestive

identification techniques so as to allay any due process concerns. Those

disagreements, in turn, highlight a more fundamental disagreement between

the parties about the nature of the trial courts role as gatekeeper, and the

jurys role in determining what weight and credibility to give to eyewitness

evidence.

For his part, defendant argues that the victim seeing defendant in court

and seeing a single photo of himtwo years after the shooting and in

preparation for trialconstituted an unnecessarily suggestive identification.

He also contends that the state was requiredyet failedto demonstrate by

clear and convincing evidence that in-court identification of

defendant was independent of those unnecessarily suggestive identifications.

In defendants view, the in-court identification therefore carried with it a

very substantial likelihood of irreparable misidentification and thus violated

defendants due-process rights.

But the lawand its application to the facts of this caseare not as

defendant supposes. An unnecessarily suggestive identification occurs only,


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as the phrase suggests, when police call upon a witness to make an

identification. That does not occur when, as here, years after the event and

initial identifications that are not themselves unduly suggestive, the victim

sees defendant in court and sees a single photograph but is not asked to

identify defendant. Even if those actions were unnecessarily suggestive, the

state is required to demonstrateby a preponderance of the evidence and

not by clear and convincing evidencethat the victims in-court

identification was reliable independent of any suggestive identifications.

The state did so here by putting on evidence that the witness identified

defendant as the man who shot her and gave largely consistent and detailed

descriptions of defendant, all close in time to the incident and shortly after

having had the opportunity to view defendant for 40 minutes. The trial

court, in its role as gatekeeper, thus properly allowed the jury to determine

what credibility and weight to give to the victims positive identification.

A. The Due Process Clause offers a limited protection against

unreliable eyewitness identification resulting from improper and

suggestive police conduct.

The Due Process Clause of the Fourteenth Amendment guarantees a

criminal defendant a fair trial. Lisenba v. California, 314 US 219, 236, 62

S Ct 280, 86 L Ed 166 (1941). Its aim * * * is not to exclude

presumptively false evidence, but to prevent fundamental unfairness in the

use of evidence whether true or false. Id. The United States Supreme


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Court has defined the category of infractions that violate fundamental

fairness very narrowly and has cautioned that judges are to determine

only whether the action complained of * * * violates those fundamental

conceptions of justice which lie at the base of our civil and political

institutions and which define the communitys sense of fair play and

decency. Dowling v. United States, 493 US 342, 352, 110 S Ct 668, 107 L

Ed 2d 708 (1990) (internal citations and quotation marks omitted).

That the category of due process protections is narrowly prescribed

also holds true with respect to eyewitness identifications. The Court first

highlighted concerns surrounding improperly suggestive eyewitness

identifications not in the context of due process but in the context of the

Sixth Amendment right to counsel.5

In United States v. Wade, 388 US 218,

228, 87 S Ct 1926, 18 L Ed 2d 1149 (1967), the Court noted the concerns

that arise when the prosecution presents the suspect to witnesses for pretrial

identification under circumstances that suggest to the witnesses that a

particular individual is the perpetrator of the crime. The Court concluded

that because a post-indictment lineup was a critical stage of the proceeding,

5The state focuses its discussion on federal due process cases

because, as this court has noted, the Oregon Constitution does not have an

analog to the federal due process provision. MacPherson v. Department of

Administrative Services, 340 Or 117, 127, 130 P3d 308 (2006).


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defendants were entitled to counsel. Id. at 236-37. That presence of

counsel, in turn, could protect against potentially suggestive lineups and

tainted identifications. Id. at 228, 232-33.

Following Wade, the Court had held that the same concerns

surrounding suggestive identification techniques may also support a claim

under the Due Process Clause. Stovall v. Denno, 388 US 293, 301-02, 87

S Ct 1967, 18 L Ed 2d 1199 (1967). But the Court was unwilling, as a

constitutional matter, to categorically prohibit the use of all eyewitness

identifications, and for several reasons. Simmons v. United States, 390 US

377, 384, 88 S Ct 967, 19 L Ed 2d 1247 (1968). The first is that despite the

dangers that attend eyewitness identifications, eyewitness identifications

have long been an effective law-enforcement tool. Id. at 384. Eyewitness

identifications not only enable law enforcement to apprehend offenders but

also spare innocent suspects the ignominy of arrest by allowing

eyewitnesses to exonerate them through scrutiny of photographs. Id. at

384.

Second, eyewitness identifications are relevant and probative evidence

of a defendants guilt. See, e.g., Mason v. Brathwaite, 432 US 98, 112, 97

S Ct 2243, 53 L Ed 2d 140 (1977). Aper se rule of exclusion goes too far

inasmuch as it keeps evidence from the jury that is reliable and relevant

and may result * * * in the guilty going free. Id. at 112.


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Third, and perhaps most significantly, categorically excluding

eyewitness identifications usurps the jurys role in determining what

credibility or weight to give evidence. The jurys role protects a defendants

interest in fairness and reliability. United States v. Booker, 543 US 220,

244, 125 S Ct 738, 160 L Ed 2d 621 (2005). Juries are well-equipped to

understand the evidence and come to sound conclusions. Duncan v.

Louisiana, 391 US 145, 157, 88 S Ct 1444, 20 L Ed 2d 491 (1968).

That traditional role is no different in the eyewitness identification

context than any other. The reliability of properly admitted eyewitness

identification, like the credibility of other parts of the prosecutions case is a

matter for the jury. Foster v. California, 394 US 440, 443 n 2, 89 S Ct

1127, 22 L Ed 2d 402 (1969). In fact,

[w]here identification evidence is at issue * * * * the properevaluation of evidence under the instructions of the trial judge is the

very task our system must assume juries can perform. Indeed, * * *

the only duty of a jury in cases in which identification evidence has

been admitted will often be to assess the reliability of that evidence.

* * * [U]nder our adversary system of justice, cross-examination has

always been considered a most effective way to ascertain truth.

Watkins v. Sowders, 449 US 341, 347, 349, 101 S Ct 654, 66 L Ed 2d 549

(1981); see also Simmons, 390 US at 384 (the dangers occasioned by

suggestive identification processes can be substantially lessened by a

course of cross-examination at trial which exposes to the jury the methods

potential for error); Classen, 285 Or at 233 (eyewitness identifications


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probative force under the circumstances of the identification remain

questions for the jury).

Indeed, this case amply reflects the role that juries play. The jury was

presented with evidence surrounding how the victim identified her assailant,

an identification that defendant devoted many witnesses and time on cross-

examination trying to impeach. The jury was also presented with lengthy

and in-depth testimony from two expert witnesses about how memory and

identifications are created, the corruptive force of leading questions and

suggestive processes, and the general fallibility of the human memory. The

trial court instructed the jury to carefully consider specific factors that affect

the credibility of eyewitness identifications. All of that was done with the

recognition (a correct one) that juries are innately capable of determining

whether a particular eyewitness identification is reliable and credible.

Accordingly, to protect a defendant against any fundamental

unfairness while still respecting the jurys role, due process mandates that an

in-court identification be excluded in only limited and extraordinary

circumstances. More specifically, due process requires exclusion only when

two requirements are satisfied: (1) that law enforcement conducted the

identification process in such a way as to make it all but inevitable that [the

witness] would identify the defendant as the perpetrator, Foster, 394 US at

443; and (2) that the process was so impermissibly suggestive as to give


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rise to a very substantial likelihood of irreparable misidentification.

Simmons, 390 US at 384; see also Classen, 285 Or at 232. Only when the

trial court finds both will a party be prevented from presenting that

identification to the trier of fact. Simmons, 390 US at 385. Short of that, it

falls to the jury and its role to determine what weight and credibility, if any,

to give the identification. Classen, 285 Or at 233.

B. Because the two identifications that defendant claims were

improper were neither identifications nor unnecessarily

suggestive, defendants claims fail at the outset.

As noted, the two processes that defendant contends were

unnecessarily suggestive occurred nearly two years after the shooting and

after identification of defendant as being the person who shot her and

killed Noris: shortly before trial, a detective brought to a pre-trial

hearing that defendant attended, and saw a photograph of defendant

that same day. (ER 27).

The state argued that neither of those events were unnecessarily

suggestive (Tr 11/10/05 Tr 27), but the trial court disagreed. (ER 28). The

state acknowledges that before the Court of Appeals, the state did not

directly challenge that conclusion, believing that doing so was unnecessary

because the trial courts legal conclusions on the second part of the analysis


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was correct.6

The state further acknowledges, as it must, that this court

generally disfavors parties raising an issue before this court that it never

challenged below. This court could therefore simply accept the trial court

and Court of Appeals conclusions that those actions were unnecessarily

suggestive and move to the second step of the analysis.

But the state urges this court not to do so, and for two reasons. First,

the trial court in fact made a ruling on the question of whether an

unnecessarily suggestive identification had taken place. Thus, this is not a

case where the trial court would be surprised by this court reviewing its legal

ruling and the basis for that ruling, or one in which the parties were deprived

of the ability to develop the record and legal arguments on suggestibility.

Cf. State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011) (rule of

preservation satisfied when parties present their arguments and the trial court

had an opportunity to hear and rule upon an issue). As evidenced by the

number of amici and the volume of their filings, eyewitness identifications

have received increasing scrutiny in recent years. This courts last word on

the matter was in Classen, over 30 years ago. It would be beneficial to

6The state neither cross assigned error nor argued that the court

was right but for the wrong reasons, due to contrary precedent from the

Court of Appeals. It did note, however, that the state did not believe that it

was improper for a detective to allow to see the defendant at the court

hearing. See Resp Br at 27.


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litigants and lower courts to have guidance whether the trial court correctly

ruled that the types of procedures that occurred here trigger examination of

the second step of the analysis.

Second, the second step of the analysiswhether the in-court

identification was independent of any suggestive identificationsis entirely

based upon the determination that the earlier identifications were

unnecessarily suggestive. Bypassing the first consideration to address only

the second is, at the very least, analytically awkward. That holds

particularly true where, as here, the entire premise that the analysis of the

second step is built uponthat there was an identification and it was

unnecessarily suggestiveis fallible.

On its merits, the most significant, and perhaps most obvious,

difficulty with defendants claims is that at neither point that defendant

identifies as being improperly suggestive was was never asked to

identify defendant. In other words, properly viewed, the entire premise of

defendants claim falls apart. Each of actual identifications of her

assailant occurred shortly after the shooting and to multiple people (and the

grand jury), and long before the challenged conduct by police during trial

preparations. She regularly and fairly consistently identified the shooter as

the same person who had been in the camp earlier that day: defendant.


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Between that time and the time of trial, no law enforcement official

engaged in the type of action that made it all but inevitable that [the

witness] would identify the defendant as the perpetrator because she

already had identified defendant.7 Foster, 394 US at 443. Detective

Merrifield took to a pre-trial hearing, shortly before trial, only to allay

her fears of having to face defendant at trial. (11/9/05 Tr 125-26). But the

record is completely devoid of any evidence that he took her there for the

purpose of identifying defendant, that he suggested that she do so, or that she

in fact did. The same holds true with respect to having seen a single

photograph of defendant just after the pre-trial hearing. She was not asked

to identify defendant, nor did she. E.g. Brathwaite, 432 US at 116 (the

victim examined the photograph alone, [with] no coerceive pressure to

make an identification arising from the presence of another).

To the extent that viewing of defendant in court or in the

single photograph could be classified as an identifications of some sort, it

can hardly be classified as unnecessarily suggestive. That much becomes

clear when compared to cases in which the identification has been deemed

unnecessarily suggestive. For instance, the Court categorized one

7To be sure, police asked her to identify her assailant while she

was hospitalized. (11/4/05 PM Tr 77). But defendant does not suggest those

identification processes were unnecessarily suggestive.


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identification process as unnecessarily suggestive when police called the

victim down to the police station, had two detectives walk the defendant past

the victim, and directed the defendant to say shut up or Ill kill you, the

same words the victims assailant had uttered. Neil v. Biggers, 409 US 188,

195, 93 S Ct 375, 34 L Ed 2d 401 (1972). Similarly, an identification

process was deemed unnecessarily suggestive when police constructed two

line-ups, in which the defendant was the only person at both, followed by a

show-up in which police told the victim that the defendant was in fact the

man. Foster, 394 US at 443. Although both are perhaps extreme

examples, they amply illustrate what is lacking here: a police-orchestrated

event in which the police encourage or request that the victim identify a

particular person.

Moreover, it is neither realisticnor constitutionally requiredthat

victims of crimes be sequestered from any and all exposure to the person

charged with a crime against them. Television news and newspapers

inevitably carry stories, sometimes with accompanying photographs, of

significant crimes. Victims are entitled to be at proceedings, held in open

court, where a defendant is present. Or Const, Art I, 42(1)(a) (victims

have [t]he right to be present at * * * any critical stage of proceedings held

in open court when the defendant will be present.); Or Const, Art I, 10

(No court shall be secret, but justice shall be administered, openly and


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without purchase, completely and without delay, and every man shall have

remedy by due course of law for injury done him in his person, property, or

reputation.); see alsoUnited States v. Crews, 445 US 463, 100 S Ct 1244,

63 L Ed 2d 537 (1980) (The presence of a defendant in courtis not the

product of any improper procedure). Victims are also called upon to work

closely with law enforcement and district attorneys in the times leading up to

trial. That trial preparation inevitably will result in further exposure to the

defendant and to incriminating evidence that a victim may be required to

testify about. But it simply cannot be said that any incidental viewing of a

defendant in these contextswith no accompanying request to identify the

defendant as the assailantconstitutes an unnecessarily suggestive

identification technique.

In short, because law enforcement neither asked to identify

defendant in court or from the single photograph nor engaged in any

procedure that encouraged her to identify defendant as her assailant,

defendants claim that officers engaged in improper identification

procedures necessarily fails.


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C. Because the question is one of reliability, this court should

evaluate whether the state demonstrated that the in-court

identification had a source independent of any suggestive

identification under a preponderance of the evidence standard.

Even if this court were to conclude that the trial preparation included

an unnecessarily suggestive identification, the analysis does not end there.

Instead, this court must then consider whether the suggestive identification

methods irreparably tainted the victims later in-court identification. The

parties agree8

on the analytical framework for answering that question:

courts consider the facts of the individual case in the totality of the

circumstances whether the identification was nonetheless reliable. Factors

to be considered include, but are not limited to,

The opportunity of the witness to view the criminal at the time of thecrime

The witnesss degree of attention The accuracy of the witnesss prior description The level of certainty demonstrated by the witness The length of time between the crime and the identification.

8To clarify, the parties agree inasmuch as both defendant and the

state agree on the analytical framework. Various amici appear to propose

slightly altered versions of the analysis, but defendant does not suggest that

this court adopt amicis analysis.


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Biggers, 409 US at 199-200; see also Classen, 285 Or at 232-33 (stating

similar factors).

Defendant and amici maintain that the states burden under that

framework is to prove by clear and convincing evidence that the in-court

identification is independently reliable. But a clear and convincing standard

is not what the Due Process Clause requires.

In urging this court to adopt a clear and convincing standard,

defendant and amici rely on Wade, 388 US at 240. In that case, the Court

framed the governments burden in terms of giving the government the

opportunity to establish by clear and convincing evidence that the in-court

identifications were based on observations of the suspect other than the

[tainted] lineup identification. Id. From that, courts across the country

have adopted the clear and convincing standard. See, e.g., Amicus Curiae

Oregon Criminal Defense Lawyers Association at 11 n 5 (collecting cases).

Reliance on Wade for the proposition that the proper standard is clear

and convincing evidence is understandable, but ultimately misplaced and

constitutionally incorrect. The Court has subsequently noted that eyewitness

identification evidence does not implicate the integrity of the adversary

process in the same manner as the absence of counsel that was present in

Wade. Brathwaite, 432 US at 113 n 14 (While identification testimony is

significant evidence, such testimony is still only evidence, and, unlike the


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presence of counsel, is not a factor that goes to the very heartthe

integrityof the adversary process. Counsel can both cross-examine the

identification witnesses and argue in summation as to factors causing doubts

as to the accuracy of the identification) (internal quotation marks omitted).

Instead, so long as a trial court makes a threshold determination that the

identification is sufficiently reliable, the protections of a jury trial are

adequate to protect a defendants due process.

Questions of reliability, even in the context of alleged constitutional

violations, require proof by no more than a preponderance of the evidence.

Lego v. Twomey, 404 US 477, 484, 92 S Ct 619, 30 L Ed 2d 618 (1972)

(applying that standard to coerced confession determinations). For instance,

the Court has analyzed claims of coerced confessions in a manner similar to

tainted identification claims, and has imposed a preponderance of the

evidence standard. Id. Coerced confessions carry with them risks similar to

those inherent in suggestive identification cases: facts are frequently

disputed, questions of credibility are often crucial, inferences to be drawn

from established facts are often determinative, and juries are unlikely to

blithely ignore what might be a truthful, and yet coerced, confession.

Jackson v. Denno, 378 US 368, 389-90, 84 S Ct 1774 (1964). And, like in-

court identifications that are not sufficiently attenuated from a tainted

identification, coerced confessions are extraordinarily prejudicial, and call


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into the question the reliability of the evidence. Colorado v. Connelly, 479

US 157, 182, 107 S Ct 515, 93 L Ed 2d 473 (1986) 530 (No other class of

evidence is so profoundly prejudicial.) (Brennan, J., dissenting);Lego, 404

US at 484-85.

In light of those concerns, the Court has held that the constitution

requires that the trial courtnot the juryensure a reliable and clear-cut

determination of the voluntariness of the confession, including the resolution

of disputed facts upon which the voluntariness may depend. Jackson, 378

US at 391. The standard of proof in that context, however, is a

preponderance of the evidence. Lego, 404 US at 484.9

The Court has also applied that same standard more broadly (and

generally) to questions of admissibility of evidence in criminal cases.

Connelly, 479 US at 168-69 (rejecting clear and convincing evidence as the

standard for determining the admissibility of evidence on motions to

suppress in criminal cases). This court has followed suit. E.g. State v.

Miller, 300 Or 203, 225, 709 P2d 225 (1985), cert den, 475 US 1141 (1986)

9Burdens of proof serv[e] to allocate the risk of error between

the litigants and to indicate the relative importance attached to the ultimate

decision. Addington v. Texas, 441 US 418, 423, 99 S Ct 1804, 60 L Ed 2d

323 (1979). As applicable here, the trial court makes the threshold

determination of reliability, and leaves to the jury the ultimate decision of

guilt.


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(the proper burden of proof for inevitable discovery of evidence is a

preponderance of the evidence); State v. Carlson, 311 Or 201, 209, 808 P2d

1002 (1991) (preponderance of the evidence is the proper standard for a trial

courts resolution of preliminary questions of fact).

That standard is the proper constitutional fit here as well. Trial courts

must determine that an in-court identification is sufficiently attenuated from

that previous suggestive identification so as to render it independently

reliable. That questionsimilar to coerced confessions or inevitably

discovered evidenceis a preliminary question of threshold reliability. See

also OEC 104 (describing the respective roles of court deciding threshold

questions, such as admissibility of evidence). In due process terms, the

process due to a defendant requires trial courts to serve as gatekeepers to

keep a jury from hearing entirely unreliable evidence (or evidence that gives

rise to a very substantial likelihood of irreparable misidentification).

That question of reliability is assessed under the same burden of proof that

courts employ to review similar questions: a preponderance of the evidence.

D. The state proved that in-court identification of defendant

had sources independent of any suggestive identifications, and the

trial court properly allowed the jury to consider the remaining

questions of the weight and credibility to give testimony.

Under the appropriate constitutional standard, the trial court correctly

concluded that in-court identification was not the result of any


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previous impermissibly suggestive identifications. Considering, as this court

must, the totality of the circumstances of identification, the state

demonstrated that in-court identification did not carry with it a very

substantial likelihood of irreparable misidentification such that jurors could

not fairly assess it. To the extent that the victims recounting of the events

or of her assailant contained inconsistencies or contradictions, those

inconsistencies did not negate the otherwise independently reliable

identification, and the trial court properly allowed the jury to determine the

weight and credibility to give to the identification.

1. Factual background of the shooting and subsequent

identifications.

The factors that this court must consider in determining whether

in-court identification was independent of any suggestive

identifications rely heavily on the victims opportunity to view the criminal

at the time of the crime, her degree of attention, and her degree of accuracy.

Thus, the state describes in depth the facts that relate to those factors. This

court is bound by the trial courts factual findings if there is evidence in the

record to support them. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621

(1968).

As noted above, and Noris encountered defendant at their

campground site. Defendants yellow pick-up truck was parked nearby.


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(11/4/05 PM Tr 22). No one else was in the campground and defendant later

acknowledged encountering and Noris there. (11/4/05 PM Tr 19;

11/15/05 Tr 71). The encounter gave 40 minutes to observe defendant,

in the daylight, as he lingered nearby. (11/4/05 PM Tr 40). She noticed that

defendant was wearing a black shirt and a black hat that had some kind of

white lettering on it. (11/4/05 PM Tr 32). At one point, walked past

him and looked in his eyes. (11/4/05 PM Tr 30). She also noticed that he

had a loping walk[.] (11/4/05 PM Tr 32).

and Noris were shot later that evening, about 10 p.m. (10/20/05

Tr 123; 11/4/05 PM Tr 50-56). The lights were on in the trailer. (11/4/05

PM Tr 51). After being shot, and as lay on the floor unable to move,

she heard someone approach the trailer. (11/4/05 PM Tr 57). A man then

came into their trailer, demanding keys to the truck. (11/4/05 PM Tr

57). told him the keys were likely still in her husbands pants.

(11/4/05 PM Tr 58). The man became frustrated when he could not find the

keys, and accused of lying to him. (11/4/05 PM Tr 58). Not knowing

that her husband was already dead, begged him not to kill them.

(11/4/05 PM Tr 59). The man asked if she had seen his face.

(falsely) told him she had not, and promised she would never identify him.

(11/4/05 PM Tr 58-59). The man took a pillow from inside the trailer, and

put it over her head. (11/4/05 PM Tr 58).


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As the assailant looked unsuccessfully for the keys to the truck,

realized that his walk was even different. It seemed familiar somehow,

because it was just slow * * *. (11/4/05 PM Tr 59). She also realized that

she had heard that voice somewhere, and I had heard the walk. It seemed

familiar. (11/4/05 PM Tr 60). then decided I had to see who it

was. (11/4/05 PM Tr 60). She saw her assailant coming into the light,

and I saw his face. (11/4/05 PM Tr 60). At the moment she saw his face,

she recognized him as the man that had been in the campsite earlier that day:

defendant. (11/4/05 PM Tr 60). When defendant could not find the truck

keys, and when the 9-1-1 operator called back on a cell phone, he left.

(11/4/05 PM Tr 61).

The 9-1-1 operator asked if her assailant was still there.

(11/4/05 PM Tr 61; ER 21). Because she was afraid he was still nearby and

to make certain that defendant thought that I wasnt going to tell, she

reported that her assailant was gone. (11/4/05 PM Tr 61). When emergency

personnel arrived at the scene of the shooting, an emergency medical

technician (EMT) asked who had shot her and Noris. responded

that she did not know. (ER 21). The EMT later asked her again if she knew

who did this, [were] they driving a vehicle? (ER 23). responded, I

dont know. They wanted our car * * * our truck. (ER 23). later

explained that she did not initially disclose that the man who had been at


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campground earlier that daydefendantwas the person who shot her

because she was afraid that defendant was still present. (11/4/05 PM Tr 65).

Deputy Mapes interviewed while she was in the ambulance.

told him that the shooter was slender and had been wearing a black

shirt and baseball cap with white letters. (10/21/05 Tr 61). described

her assailant having told her that he would not kill her because he believed

she had not seen his face. (10/21/05 Tr 61). was then told that Noris

had been killed. (10/20/05 Tr 64-65). At that point, and after being

transferred to a second ambulance, she told another EMT, Morgan, that the

individual who shot her and Noris was the same person who had been in the

campground earlier in the day. (10/20/05 Tr 170-71). She also repeated that

her assailant had been wearing a black shirt and a cap, and that she had

promised him she would not disclose that she recognize[d] him if he

wouldnt shoot her. (10/20/05 Tr 170).

was then transferred to a life-flight helicopter. (10/20/05 Tr

174-75). En route to the hospital and before any medication had been

administered, she told one of the emergency personnel, Jennings, that a

young man with a yellow truck had shot her. (10/21/05 Tr 28, 11/9/05 Tr

129-133). also indicated that she knew or had had contact with the

person who shot her before the shooting. (11/9/05 Tr 131).


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Because was not expected to live, police officers made early

efforts to see if she could make an identification of the person who shot her

and killed her husband. Two days after the shootingas was

intubated and heavily medicated, and had almost no ability to verbally

communicateSergeant Kipp showed a photo throwdown containing

defendants picture. (11/8/05 Tr 91-92). She later testified that she could

not even see the small photos, because her medications blurred her vision.

(11/4/05 PM Tr 77). She only shook her head when Sergeant Kipp showed

her the montage. (7/19/05 Tr 27, 81-82, 84; 11/4/05 PM Tr 77, 107; 11/8/05

Tr 91-92). did indicate, through gestures, that she had seen the man

who shot her. (11/8/05 Tr 93). Sergeant Kipp further learned from

gestures that he had been wearing a baseball hat. (11/4/05 PM Tr 69;

11/8/05 Tr 96). Sergeant Kipp also was able to pin down, by naming a

series of colors, that the shooter had been driving a yellow truck. (11/8/05

Tr 94). At that interview, Sergeant Kipp asked if the person that had

shot them had stayed in their tent at their campground. (11/8/05 Tr 93).

And she shook her head yes.10

(11/8/05 Tr 93).

10The trial court found that Sergeant Kipp had used leading

questions in the hospital interview, but concluded that his approach was

necessitated by medical condition. (ER 26).


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Several days later, on September 3, Detective Merrifield interviewed

at the hospital. (11/8/05 Tr 123). Due to the seriousness of her

injuries, she was still in the critical care unit. (11/9/05 Tr 7). She was able,

however, to communicate briefly through whispers. (11/8/05 Tr 124-25).

From whispered remarks, told Detective Merrifield that the shooter

had come into the trailer briefly, had demanded their keys, had put a pillow

over her face, and that she did not know who it was. (11/8/05 Tr 125;

11/9/05 Tr 8-9). fell asleep as she was talking to Merrifield. (7/19/05

Tr 36-40, 48; 11/8/05 Tr 125).

Detective Merrifield returned on September 22, almost a month after

the shooting, with Detective Bradburn when was more alert. (11/8/05

Tr 125-26). was able to provide him a lengthy narrative about the

shooting. (11/8/05 Tr 132-58). Detective Merrifield brought a 6-person

color montage, including a more recent photo of defendant. (7/19/05 Tr 28;

11/8/05 Tr 128-30). He provided written instructions that was under

no obligation to make any selection. (11/8/05 Tr 129). had difficulty

seeing the montage due to their size and due to her medically induced

blurred vision.11 (11/4/05 PM Tr 79; 11/8/05 Tr 131). She did, however,

11testified that while in the hospital, My hands were shaky,

and I believe I explained that to him at the time, that my eyes were veryFootnote continued


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positively identify a photo of defendants truck as having been at the

campsite that day. (7/19/05 Tr 23; 11/8/05 Tr 127). also stated that

the hat and shirt worn by the shooter were the same as worn by the

individual in their camp earlier in the day and that she had seen his face even

though he put a cushion over hers. (11/08/05 Tr 154-55).

Detective Merrifield returned a week later with Sergeant Kipp to

interview once more. Although she expressed concern that she had

only seen her attackers profile, reiterated that the shooter was the

same man that had been in their camp earlier in the day. (11/8/05 Tr 176-

77). Sergeant Kipp asked whether she would be willing to do a lineup

with just profiles. (11/8/05 Tr 176-77). responded maybe I can do

this, maybe I cant, but Im telling you, its the guy from the camp earlier in

the day. (11/8/05 Tr 177). Towards the end of the interview, Detective

Merrifield told who had expressed concerns that defendant would

return to kill her or her family, that [t]he man that youve identified is the

person that we have in custody, and he identified defendant by name.

(11/8/05 Tr 180).

(continued)

watery due to the medications, the morphine and whatnot, and so small

details I couldnt pick out. (11/4/05 PM Tr 77-79).


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was still hospitalized when the grand jury convened. However,

she submitted an affidavit on October 3, 2003, in which she stated that she

saw the person who attacked us and that person was the same man who I

had seen earlier in the day trespassing in our campsite. (Rec 650).

2. had an opportunity to get a clear view of defendant

after he shot her and came into the trailer to find her car

keys.

One of the factors that must be considered in determining whether the

witnesss identification was independent is the opportunity the witness had

to view the defendant at the time of the crime. Biggers, 409 US at 199;

Classen, 285 Or at 232. Here, as just described, had a significant

opportunity to view defendant at the time of the crime. Although it was dark

outside, the light was on in the trailer when defendant approached her to put

the pillow over her face. deliberately moved her head for the sole

purpose of seeing her perpetrator. thus had ample opportunity to see

defendant in profile, and to recognize defendant from their 40-minute

encounter earlier that day. She also heard his voice and observed what she

described as a unique, loping gait.

To be sure, was suffering from life-threatening injuries and the

trauma of her husband being shot. But as this court has noted, that kind of

stress and pain can mak[e] for a high degree of attention and impress[] the

defendants picture on the victims memory. Classen, 285 Or at 237 n 11.


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The states expert, Dr. Suckow, confirmed that highly traumatic events may

actually reinforce the memories and observations made during the trauma.

Thus, that was shot, lying on the floor, and bleeding does not detract

from the opportunity that she had to observe defendant after he shot

and her husband and then entered the trailer.

3. descriptions of defendant following the event were

(1) immediate; (2) consistent; and (3) detailed.

descriptions and identifications of defendant just following the

shooting, and the degree of attention to which she paid defendant during the

early encounter with him, are also factors that support the trial courts

conclusion that in-court identification was based on her independent

observations of defendant at the time of the crime. Biggers, 409 US at 199;

Classen, 285 Or at 232-33. had seen defendant at the campsite for 40

minutes in the daytime, and had paid close attention to him because of the

disturbing circumstances. took note of his clothes, his mannerisms,

and his yellow truck.

Immediately following the shooting, was initially hesitant to

describe defendant because of her fear that defendant might still be nearby.

She nevertheless immediately described defendant as wearing a black shirt

and a baseball cap with white letters. Once she learned that her husband had

been killed, she told emergency personnel that the man who shot her was the


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same man in camp that day. She told another emergency worker that the

man drove a yellow truck. Shortly after being hospitalized, she described

the person who shot her and killed Noris as a man wearing a baseball cap,

who had been in their tent, and who drove the yellow truck. She tried to do

so again in September, telling Merrifield and Bradburn that the hat and shirt

worn by the attacker were the very same as worn by the camp intruder that

day.

In short, conveyed her recognition of defendant to the first

responders very shortly after she was shot. She described his clothing, his

hat, his truck, his voice, and his loping gait. Those descriptions were shortly

followed by additionaland consistentdescriptions of defendant while in

the hospital.

4. certainty in identifying defendant in court wasabsolute.

Another factorthe certainty expressed by the witness in making the

description and in making the later identificationalso weighs heavily in

favor of the conclusion that identification was not the result of an

irreparable misidentification. Biggers, 409 US at 199; Classen, 285 Or at

233. As set out above, repeatedly and emphatically described that the

man who shot her was the same man who had been in her and Noriss

campsite earlier in the day. was equally as emphatic that she


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recognized defendant in court. testified that as she lay on the floor

after being shot, she was able to see the man who demanded the keys to their

truck.

I saw him coming into the light, and I saw his face. I was in

shock. I couldnt believe it. And II felt so guilty. The

moment I saw his face I felt so guilty. * * * Because the man

that Ithat was there that night was the same one that I had

told my husband he didnt need to worry about; he was gone;

probably not a problem, you know. And then hes the one that

came back and shot us.

(11/4/05 PM Tr 60). She reiterated that she was positive that defendant was

the same man she saw that night. Asked if she had any doubt, she replied,

No. Absolutely not. Ill never forget his face as long as I live. (11/4/05

PM Tr 70). See Biggers, 409 US at 200-01 (victims expression of no

doubt as to the defendants identity weighed in favor of admission).

This factor weighs heavily in favor of the conclusion that in-

court identification was based not on any suggestive identifications but

rather on her independent recollections from the night that defendant shot

her.12

12

Amici attack this factor, relying on studies that show that falsememories can become more solidified and certain with the passage of time.

Perhaps it could be said that in addition toor instead oflooking at

certainty at the time of trial, certainty at the time of the initial identification

is an important consideration. If so, that certainty was amply present here,

where repeatedly identified her assailant as being the same man who

was in their campground earlier in the day.


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5. The two-year lapse of time further supports that

identification was independent of any unnecessary

suggestion.

To be sure, the two-year lapse of time between the time that first

observed her assailant and her in-court identification was somewhat lengthy.

In many cases, a long period of time between the original observation and

the subsequent identification weighs against a conclusion that the

identification had an independent source. E.g. Biggers, 409 US at 201. The

ostensible concern underlying this factor is that, in some cases, the longer

the length of time between the original observations of the perpetrator and

the subsequent identification, the less ability an individual has to recall

details that form the basis for any identification.

But it is not only the lapse of time between the event and the

subsequent in-court identification that warrants scrutiny. An additional

aspect to any consideration of timing is the timing of the suggestive

identification in relation to the crimes. That isand as the many amici

supporting defendant point outthe quicker the identification, the greater

the chance of accuracy. E.g., Brief of Amicus Curiae The Innocence

Network at 16. Eyewitness memory can be altered by a wide variety of

factors after the crime and because of that, primary identification evidence

is deemed to be the most reliable. Id. If the unnecessarily suggestive

identification comes close in time to the crime, when the witness is still


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forming his or her memories, that suggestion is more likely to alter the

witnesss memory than if the suggestive identification occurred after the

witness had already formed his or her memories.

Here, as noted, the amount of time between the crime and the in-court

identification was two years. But critically, gave a detailed description

of her assailant close in time to the shootings. Her description was based on

an extended opportunity that she had to view defendant during that day.

Two years then passed between her detailed and largely consistent

descriptions and identifying defendant in court. During that time, police did

not embark on a series of efforts to identify a defendant that would render

unable to independently identify defendant. memory of the

event was solidified at the time that defendant shot her and her husband: she

repeatedly described defendants voice, his gait, his truck, his clothing and

headwear, and his general appearance. Subsequent events may have further

solidified her memorysuch as seeing a newspaper article with defendants

photograph while in a care facility or seeing defendant in courtbut those

early memories were untainted and independent.

6. Defendants reliance on inconsistencies in

recounting of her attack do not render her in-court

identification constitutionally unreliable.

Defendant, amici, and the dissent in the Court of Appeals all focus on

perceived inconsistencies in statements to police and medical


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personnel as evidence that in-court identification was not sufficiently

attenuated from the prior suggestive identification. Those inconsistencies

include that expressed doubts about her ability to identify defendant,

identified someone else, denied that she had seen her assailant at all, and

could not identify defendant in throwdowns during her hospitalization. Each

of those attacks fail.

As an initial matter, the testimony that had identified someone

else as the person who shot herthe pilotas the person who shot her came

second-hand from a nurse, Chartraw, working at the hospital. She also

testified that said that it had been dark, that there had been a pillow

over her face, and that she was apologetic that she could not see the person

who shot her. But as noted above, Chartraw did not testify until a week after

the trial court ruled that the in-court identification was admissible.

(11/17/05 Tr 19). At no point during or after her testimony did defendant

seek reconsideration of the trial courts earlier denial of defendants motion

to strike in-court identification. That failure is ultimately fatal to any

reliance that defendant places on Chartraws testimony as a basis to exclude

the evidence. This court does not simply review the record de novo.

Instead, it is bound by the factual findings made by the trial court, so long as

those are supported by the record. The trial court, at the time it made its

State's brief re: Samuel Adam Lawson

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