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IN THE SUPREME COURT OF THE STATE OF OREGON _______________ STATE OF OREGON, Plaintiff-Respondent, Respondent on Review, CA A132640 v. SAMUEL ADAM LAWSON, Defendant-Appellant, Petitioner on Review. _______________ 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@example.com Attorneys for Defendant-Appellant JOHN R. KROGER #077207 Attorney General ANNA M. JOYCE #013112 Solicitor General JANET A. KLAPSTEIN #782753 Assistant Attorney General 1162 Court St. NE Salem, Oregon 97301-4096 Telephone: (503) 378-4402 Email: firstname.lastname@example.org email@example.com Attorneys for Plaintiff-Respondent 10/11 SC S059234 Douglas County Circuit Court No. 03CR1469FE
TABLE OF CONTENTS First Question Presented ............................................................................................ 2 First Proposed Rule of Law ...................................................................................... 2 Second Question Presented ....................................................................................... 3 Second 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 At trial, identified defendant as the man who shot her and killed her husband. ........................................................................................ 11 Defendant moved to strike in-court identification, a motion that the trial court denied after finding that that identification was reliable. .......................................................................... 12 After the trial court denied defendant’s motion to exclude in-court identification, defendant presented additional evidence attempting to impeach her in-court identification. ................. 14 The Due Process Clause offers a limited protection against unreliable eyewitness identification resulting from improper and suggestive police conduct. ................................................................... 18 Because the two identifications that defendant claims were improper were neither “identifications” nor unnecessarily suggestive, defendant’s claims fail at the outset. .................................... 23 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 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
ARGUMENT ............................................................................................................ 16 A.
Factual background of the shooting and subsequent identifications. ................................................... 34 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 descriptions of defendant following the event were (1) immediate; (2) consistent; and (3) detailed. .................................................................................... 42 certainty in identifying defendant in court was absolute. ........................................................................... 43 The two-year lapse of time further supports that identification was independent of any unnecessary suggestion. ........................................................ 45 Defendant’s reliance on inconsistencies in recounting of her attack do not render her in-court identification constitutionally unreliable. .......................... 46
Defendant’s 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 ................................................................................ 51 Fifth Question Presented ......................................................................................... 51 Fifth Proposed Rule of Law .................................................................................... 51 Sixth Question Presented ........................................................................................ 51 Sixth Proposed Rule of Law ................................................................................... 51 ARGUMENT ............................................................................................................ 52 A. B. Evidence about other unsolved shootings is not relevant. ..................... 52 Absent a showing of prejudice, defendant cannot obtain reversal of his convictions based on the trial court’s ex parte contact with the jurors. ................................................................................. 56
CONCLUSION ......................................................................................................... 59
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
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
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
RESPONDENT’S BRIEF ON THE MERITS _______________ A jury convicted defendant of aggravated murder, attempted murder, and first-degree robbery after he shot and killed Noris injured Noris’s wife, and critically
. The couple encountered defendant using the
their tent at their campground spot. That encounter gave
opportunity to observe defendant for about 40 minutes in the daylight. Later that evening, someone shot Noris and reaching a hospital, After being shot and before
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 encountered in the campground. Two years later—and shortly before trial— saw defendant in and Noris
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 in-
shot her and killed her husband. Defendant now contends that 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.
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 victim’s earlier, repeated, and largely consistent descriptions of defendant were so irreparably tainted by a later suggestive identification that, to protect a defendant’s 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 This 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.
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 incourt 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
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, nor—to the extent that this court rejects that contention—did
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 events—seeing defendant at a hearing and seeing a single photo of him—that 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 defendant’s 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
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 defendant’s 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 identifications—must 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, defendant’s convictions in this case are based upon the nighttime shooting of Noris and Given the seriousness of the
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 court’s 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 after the trial court denied his motion. And defendant never renewed his motion to strike in-court identification after that additional evidence came in. Accordingly, those facts—elicited after the court ruled—cannot be considered to determine whether the trial court properly denied defendant’s
motion to suppress
in-court identification. To make clear which
facts were a part of the trial court’s determination and which were not, the state separates the facts considered by the court when it ruled from the unconsidered—and therefore largely irrelevant—facts. 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). 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.
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 5556). After Noris was shot, the assailant came into the trailer in an apparent effort to find the keys the that Noris was already dead, PM Tr 58). The man asked 58). truck. (11/4/05 PM Tr 57). Not knowing begged the man not to kill them. (11/4/05 if she had seen his face. (11/4/05 PM Tr
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 91-1 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,
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 assailant’s 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 hospitalized—and after had already identified defendant—Detective 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 defendant’s name. (11/8/05 Tr 180, ER 27). transferred to rehabilitation center.
Also in October 2003,
(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).
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 defendant’s claim that in-court identification was tainted. testified that
about a month before trial—or two years after Detective Merrifield brought
had been shot—
to the courthouse to observe a pre-trial to court
hearing. (11/8/05 Tr 80). Detective Merrifield elected to take
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 defendant wearing a hat.3 (11/8/05 Tr 18). a single photograph of
The trial court found as fact that it was after had come to court that she saw the single photograph of defendant. (ER 27).
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 defendant’s photograph. (11/8/05 Tr 15). Without prompting, she volunteered, “That’s 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 not want the court to order a mistrial, but only to order 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 At 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 don’t want a mistrial. We want to resolve this case.” (11/10/05 Tr 14-15).
in-court identification stricken.4 (11/10/05
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 custody; (2) in September 2003 that they had defendant
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 defendant’s 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 the same “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).
After the trial court denied defendant’s motion to exclude in-court identification, defendant presented additional evidence attempting to impeach her in-court identification. After the trial court denied defendant’s motion to exclude in-
court identification of defendant, the jury heard additional evidence relating to earlier descriptions of her assailant. For instance, an emergency first came into the emergency room,
room nurse testified that when
said that she believed the reason she had not been killed was because she had not seen her assailant’s 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, “very apologetic” because she “wanted to help but she couldn’t provide information about who” had committed the crime. (11/17/05 Tr 39). Chartraw believed that could not identify who shot her because she was
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 person’s 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).
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, you’re 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 one’s memory about a traumatic event can actually improve over time: “It’s not a situation where you’re manufacturing things; it’s a situation where you’re recalling things that you simply weren’t paying attention to at the time.” (11/29/05 Tr 132). Defendant relied heavily on his expert’s testimony during closing arguments. He highlighted Dr. Reisberg’s 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 there’s 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 they’re, number one, consistent; do they make sense; are they off the wall? That’s going to give you the best idea of what’s going on at the time. (12/1/05 Tr 127). Defendant maintained that the state’s 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
way that she’s lying. [ doesn’t know what the truth is any more. She has been so contaminated by the police in this case. (12/1/05 Tr 78). At defendant’s 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 eyewitness’s 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 eyewitness’s 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
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 court’s role as gatekeeper, and the jury’s 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 him—two years after the shooting and in preparation for trial—constituted an unnecessarily suggestive identification. He also contends that the state was required—yet failed—to demonstrate by clear and convincing evidence that in-court identification of
defendant was independent of those unnecessarily suggestive identifications. In defendant’s view, the in-court identification therefore carried with it “a very substantial likelihood of irreparable misidentification” and thus violated defendant’s due-process rights. But the law—and its application to the facts of this case—are not as defendant supposes. An unnecessarily suggestive identification occurs only,
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 demonstrate—by a preponderance of the evidence and not by clear and convincing evidence—that the victim’s 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 victim’s 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
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 community’s 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,
The 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).
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 defendant’s guilt. See, e.g., Mason v. Brathwaite, 432 US 98, 112, 97 S Ct 2243, 53 L Ed 2d 140 (1977). A per 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.
Third, and perhaps most significantly, categorically excluding eyewitness identifications usurps the jury’s role in determining what credibility or weight to give evidence. The jury’s role protects a defendant’s “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 prosecution’s 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 proper evaluation 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 method’s potential for error”); Classen, 285 Or at 233 (eyewitness identification’s
“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 crossexamination 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 jury’s 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
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, defendant’s 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 to a pre-trial
killed Noris: shortly before trial, a detective brought hearing that defendant attended, and that same day. (ER 27).
saw a photograph of defendant
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 court’s legal conclusions on the second part of the analysis
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 court’s last word on the matter was in Classen, over 30 years ago. It would be beneficial to
The 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.
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 analysis—whether the in-court identification was independent of any suggestive identifications—is 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 upon—that there was an identification and it was unnecessarily suggestive—is fallible. On its merits, the most significant, and perhaps most obvious, difficulty with defendant’s 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 defendant’s 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.
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
To 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.
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 I’ll kill you,” the same words the victim’s 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 realistic—nor constitutionally required—that 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
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 also United States v. Crews, 445 US 463, 100 S Ct 1244, 63 L Ed 2d 537 (1980) (The presence of a defendant in court is 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 contexts—with no accompanying request to identify the defendant as the assailant—constitutes 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, defendant’s claim that officers engaged in improper identification procedures necessarily fails.
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 victim’s 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 the crime • The witness’s degree of attention • The accuracy of the witness’s prior description • The level of certainty demonstrated by the witness • The length of time between the crime and the identification.
To 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 amici’s analysis.
Biggers, 409 US at 199-200; see also Classen, 285 Or at 232-33 (stating similar factors). Defendant and amici maintain that the state’s 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 government’s 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
presence of counsel, is not a factor that goes to the very heart—the ‘integrity’—of 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 defendant’s 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 incourt identifications that are not sufficiently attenuated from a tainted identification, coerced confessions are extraordinarily prejudicial, and call
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 court—not the jury—ensure “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)
Burdens 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.
(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 court’s 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 question—similar to coerced confessions or inevitably discovered evidence—is 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
previous impermissibly suggestive identifications. Considering, as this court must, the totality of the circumstances of demonstrated that identification, the state
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 victim’s 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 identifications. subsequent
The factors that this court must consider in determining whether in-court identification was independent of any suggestive identifications rely heavily on the victim’s 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 court’s 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. Defendant’s yellow pick-up truck was parked nearby.
(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; 40 minutes to observe defendant,
11/15/05 Tr 71). The encounter gave
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 57). truck. (11/4/05 PM Tr
told him the keys were likely still in her husband’s 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 begged him not to kill them. if she had seen his face.
that her husband was already dead, (11/4/05 PM Tr 59). The man asked
(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).
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 wasn’t 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). don’t know. They wanted our car * * * our truck.” (ER 23). responded, “I later
explained that she did not initially disclose that the man who had been at
campground earlier that day—defendant—was 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 wouldn’t 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).
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 shooting—as was
intubated and heavily medicated, and had almost no ability to verbally communicate—Sergeant Kipp showed a photo throwdown containing
defendant’s 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).
The 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).
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 Tr 125-26). was more alert. (11/8/05
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 no obligation to make any selection. (11/8/05 Tr 129). was under 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,
testified that while in the hospital, “My hands were shaky, and I believe I explained that to him at the time, that my eyes were very
positively identify a photo of defendant’s 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 reiterated that the shooter was the
only seen her attacker’s profile,
same man that had been in their camp earlier in the day. (11/8/05 Tr 17677). Sergeant Kipp asked whether she would be willing to do a lineup responded “maybe I can do
with “just profiles.” (11/8/05 Tr 176-77).
this, maybe I can’t, but I’m telling you, it’s 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 you’ve identified is the person that we have in custody,” and he identified defendant by name. (11/8/05 Tr 180).
watery due to the medications, the morphine and whatnot, and so small details I couldn’t pick out.” (11/4/05 PM Tr 77-79).
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 witness’s 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 thus had ample opportunity to see
purpose of seeing her perpetrator.
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 defendant’s picture on the victim’s memory.” Classen, 285 Or at 237 n 11.
The state’s 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 court’s 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. and his yellow truck. Immediately following the shooting, was initially hesitant to took note of his clothes, his mannerisms,
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
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 additional—and consistent—descriptions of defendant while in the hospital. 4. certainty in identifying defendant in court was absolute.
Another factor—the certainty expressed by the witness in making the description and in making the later identification—also 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 Noris’s campsite earlier in the day. was equally as emphatic that she
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 couldn’t believe it. And I—I felt so guilty. The moment I saw his face I felt so guilty. * * * Because the man that I—that was there that night was the same one that I had told my husband he didn’t need to worry about; he was gone; probably not a problem, you know. And then he’s 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. I’ll never forget his face as long as I live.” (11/4/05 PM Tr 70). See Biggers, 409 US at 200-01 (victim’s expression of “no doubt” as to the defendant’s identity weighed in favor of admission). This factor weighs heavily in favor of the conclusion that court identification was based not on any suggestive identifications but rather on her independent recollections from the night that defendant shot her.12
Amici attack this factor, relying on studies that show that false memories can become more solidified and certain with the passage of time. Perhaps it could be said that in addition to—or instead of—looking 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.
The two-year lapse of time further supports that identification was independent of any unnecessary suggestion. first
To be sure, the two-year lapse of time between the time that
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 is—and as the many amici supporting defendant point out—”the 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
forming his or her memories, that suggestion is more likely to alter the witness’s 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 defendant’s voice, his gait, his truck, his clothing and headwear, and his general appearance. Subsequent events may have further solidified her memory—such as seeing a newspaper article with defendant’s photograph while in a care facility or seeing defendant in court—but those early memories were untainted and independent. 6. Defendant’s 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
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 her—the pilot—as 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 court’s earlier denial of defendant’s motion to strike in-court identification. That failure is ultimately fatal to any
reliance that defendant places on Chartraw’s 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 ruling, did not have Chartraw’s testimony before it.
Defendant also misplaces heavy reliance on the fact that
unable to identify defendant on two different occasions during throwdowns. He ignores the reasons that she was unable to do so: due to her medical condition, as both and the officers testified, her vision was blurred and
watery from the medications she was required to take. Although reported to the first person on the scene that she did not see who shot her, she did so because she was fearful the person was nearby. And while first referenced her assailant as a “they,” she did so mimicking the question that was asked to her. The EMT who first questioned asked if
knew who “did this, [were] they driving a vehicle?” (ER 23) (emphasis added). responded that she did not know, that “they wanted our
car* * *our truck.” (ER 23) (emphasis added). The trial court was entitled to conclude that a reference to a “they,” as opposed to an individual assailant, when mimicking the question asked did not warrant preventing the jury from hearing credibility to give it. In all events, to the extent that there were some discrepancies in descriptions or abilities to recount the details of her assailant, none of those created a “very substantial likelihood of irreparable misidentification.” As explained above, that standard, judged by a preponderance of the evidence, sets a high threshold so as not to keep the jury from fulfilling its identification and assessing what weight or
role in judging the credibility and weight of otherwise reliable evidence. The trial court—in its role as gatekeeper—is called upon only to make an initial ruling that the identification is sufficiently and independently reliable to warrant allowing the state to present that identification to the jury. 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 identifications—must be the ultimate decision-maker regarding the weight and credibility to give any identifications. Defendant had ample opportunity to impeach, challenge, undermine, and refute identification. Nothing
more is required in a system whose core values are the right to jury, to confrontation, and to cross examination. The inconsistencies in this case simply do not rise to the level of being so overwhelming and substantial so as to remove the evidence from the jury. In sum, although there may have been ample grounds to impeach identification, the reliability and probative force of her in-court identification were questions for the jury. II. Defendant’s remaining claims provide no basis for reversal. Defendant reiterates nearly verbatim his remaining legal claim presented to the Court of Appeals, omitting only his challenge to shoeprint evidence. Because his arguments are largely mirror those presented to that
court, the state adopts as its primary brief those arguments contained in its respondent’s brief, starting at page 28. See ORAP 9.20(4) (providing that briefs filed in the Court of Appeals “will be considered as the main briefs in the Supreme Court,” as supplemented by additional memoranda or briefing). The state supplements its lower-court brief with brief discussion of more recent case law and to respond to new arguments defendant raises on appeal. Third Question Presented Are a defendant’s compulsory and due process rights violated when a trial court, after conducting its own in camera review of materials and determining that the materials are irrelevant, declines to allow defense counsel to review those same materials? Third Proposed Rule of Law Absent a showing that the materials are actually material and favorable, a defendant has no constitutional entitlement to the documents; mere speculation that the materials might be material and favorable is insufficient. In this case, defendant failed to make that showing. Fourth Question Presented Is a defendant entitled to present evidence of unrelated crimes, absent a showing that those crimes established a modus operandi or had a nexus to the crime for which the defendant was charged?
Fourth Proposed Rule of Law Evidence of unrelated crimes that have no established link to the charged crimes does not have a tendency to make the existence of any fact of consequence to the determination more likely. Therefore, such evidence is irrelevant. Fifth Question Presented When a defendant learns of alleged juror misconduct before the verdict, but fails to move for a mistrial until after the verdict is received, is a motion for a mistrial untimely? Fifth Proposed Rule of Law A motion for mistrial is timely only when it is made as soon as the objectionable event occurs. A motion for a mistrial that is based on events occurring before the verdict but that is not made until after the verdict is therefore untimely. Sixth Question Presented What type of conduct forms a basis for a new trial based on juror misconduct? Sixth Proposed Rule of Law Juror misconduct relates to behavior including fraud, bribery, forcible coercion, or other obstruction of justice. Absent a showing that a juror
engaged in that type of behavior, no basis for a new trial based on juror misconduct exists. ARGUMENT A. Evidence about other unsolved shootings is not relevant. Defendant sought to admit evidence of two other unsolved shootings, one that was committed two years after and 15 miles away from the crime, and one in which no one was hurt and occurred in broad daylight. In defendant’s view, those shootings were relevant to prove that someone else shot the because defendant was in custody when both those other
crimes occurred. Defendant thus contends that the trial court improperly excluded evidence of those unsolved shootings under OEC 401 and 403. Although the test for relevancy is relatively low, it is not so broad as to allow this type of speculative third-party-guilt evidence. This court recently rejected the admission of evidence of a generic burglary offered to prove a motive for a murder, where the offenses are too dissimilar and where their connection is “mere conjecture.” State v. Garrett, 350 Or 1, 9, 248 P3d 965 (2011). It has previously found that other killings that occur in a defendant’s own neighborhood are not “independently relevant” to show the identity of the perpetrator, in the absence of a significant degree of similarity. State v. Johnson, 313 Or 189, 195-98, 832 P2d 443 (1992).
The same speculative deficit is present in defendant’s theory that the other unsolved shootings were committed by the same person who shot the To be sure, because the records have not been viewed beyond the trial court and Court of Appeals’ in camera reviews, it is unknown to the parties to what extent the sealed documents show material differences between the cases. But even the publicly known details about the unsolved shootings do not reflect any “signature” type of offense that might identify its perpetrator, which could exculpate defendant. Nor do those details show anything exculpatory in the sense that defendant could not have murdered the Indeed, he admits he was in the area, admits he had a
confrontation with Noris about using their campsite, and admits he was in possession of the type of weapon which killed him and wounded The
“striking similarities” defendant sought to show simply never bore fruit.13 The trial court thus properly excluded it. Defendant, relying on State v. Rogers, 330 Or 282, 312 n 8, 4 P3d 1261 (2000), now also suggests that the trial court applied the wrong rule of law under OEC 403 by not explicitly addressing each factor in that rule. (Pet BOM 40-41). Defendant did not seek any such explicit articulation of
By that reasoning, hundreds of other violent crimes that defendant did not do must be exculpatory.
what weight to be given each factor below. It should suffice under OEC 403 that the court explained what factors it found most significant to its decision.14 The court did so, in finding the evidence had little “tendency to prove a relevant fact,” because of the lack of sufficient similarities, and that the probative value was “substantially outweighed by the time it would take to try another case.” (11/29/05 Tr 193). To the extent that defendant means to assert that OEC 403 itself violated his constitutional right to present a defense, the claim is both unpreserved and meritless. Defendant never contended that OEC 403 itself was arbitrary or disproportionate to its goal of excluding evidence that has little probative value; his challenge raised only application of that rule to him. Regardless, a criminal defendant’s constitutional right to present a defense does not trump valid evidentiary rules. See Holmes v. South Carolina, 547 US 319, 327, 126 S Ct 1727, 164 L Ed 2d 503 (2006) (“[T]he Constitution permits judges to exclude evidence that is * * * only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of
The rule itself contains factors that would not be uniformly applicable to all evidentiary issues. For example, cumulative evidence is rarely “unfairly prejudicial,” but is often excluded on that ground alone. Findings on each criteria may constitute “best practices” by a trial judge, as this court urged in State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987), but failure to do so should not be grounds for reversal, as long as the court’s rationale is explained.
the issues.” (internal quotation marks omitted)). Here, the trial court excluded the other-shooting evidence under established evidentiary rules, viz., OEC 401 and 403, designed to limit introduction of marginally relevant evidence. Defendant now cites State v. Cazares-Mendez, 350 Or 491, 256 P3d 104 (2011), to contend that exclusion of third-party guilt evidence contravenes due process. (Pet BOM 43). But this court in Cazares-Mendez applied settled jurisprudence to a decidedly different set of circumstances, in holding hearsay evidence admissible under due process principles. In Cazares-Mendez, the third-party suspect made explicit admissions to four different persons that she had stabbed a woman to death. 350 Or at 514. This court examined the detailed admissions, including the name of the victim, and found them sufficiently corroborated to be reliable and trustworthy. Id. at 514-15 Because the hearsay suspect was present and testified, denying both the crime and the statements, the due-process analysis was limited to examining whether the “unavailability” requirement of OEC 804(3) must yield, when the exculpatory hearsay was trustworthy. Id. at 516. Defendant was not deprived of any opportunity to prove that someone else may have shot the as long as he did so through admissible
evidence that did not rely on sheer speculation. He was able to assert that
his gun had been stolen, that the forest was filled with back roads by which another person could have escaped, that identification was
questionable, and that he owned no clothing like that she described. Indeed, the evidence that the detective injected about a third homicide in which the perpetrator escaped through back roads proved that very point. Defendant’s constitutional claim thus lacks merit. B. Absent a showing of prejudice, defendant cannot obtain reversal of his convictions based on the trial court’s ex parte contact with the jurors. As amply detailed in defendant’s brief, the trial court exchanged several notes with jurors relating to health concerns during deliberations. (Pet BOM 43-45). The trial court also received several notes from the jury relating to substantive matters, notes that prompted the trial court to refer the jury back to its original jury instructions. None of those notes were disclosed to defendant until shortly before the verdict was read. Defendant maintains that he was entitled to “automatic reversal” for the court’s failure to notify counsel of the existence of jury questions. But that claim is similar to the “structural error” claim raised and rejected in State v. Wilson, 323 Or 498, 508, 918 P2d 826 (1996), cert den, 519 US 1065 (1997). There, the defendant asserted his exclusion from preliminary orientation of potential jurors, and the absence of counsel for portions of that orientation, required “automatic reversal” for violation of his right to be
present at trial, under the Fifth and Fourteenth Amendments. Id. This court found that even if the defendant had the right to be present, any error in his exclusion was harmless. Id. at 509-10 This court noted that during the period of defendant’s absence, the trial court provided the very same jury instructions that were given at the close of the case. Id. at 507. It noted also, as to defendant’s claim that his absence “hampered his ability to make peremptory challenges,” that the concern for potential harm “could have occurred only during the very brief period while defense counsel was present, before counsel left.” Id. at 507. Citing Rushen v. Spain, 464 US 114, 117-19, 104 S Ct 453, 78 L Ed 2d 267 (1983), this court found defendant’s absence was harmless to his substantive rights. Here, too, the court’s substantive response was merely to remind jurors of instructions already provided. (ER 36, 38) Defendant now relies on Fillipon v. Albion Vein Slate Co., 250 US 76, 39 S Ct 435, 63 L Ed 853 (1919), and Rogers v. United States, 422 US 35, 95 S Ct 2091, 45 L Ed 2d 1 (1975), to argue that he had a right to be heard as to whether the court should have reinstructed or otherwise responded to the substantive notes. (Pet BOM 51-52, 56). But even assuming those cases remain valid after Rushen and United States v. Gagnon, 470 US 522, 105 S Ct 1482, 84 L Ed 2d 486 (1985), both are materially distinguishable. Fillipon involved a trial court giving supplemental instructions to jurors
without notice to counsel or giving opportunity to object to their content. 250 US at 80. Rogers involved jurors inquiring of the trial court whether it would accept a verdict that asked for “extreme mercy” in sentencing, which the Court found the inquiry “tantamount to a request for further instructions.” Rogers, 422 US at 36, 39. The Court held the trial court’s affirmative response, without notice to counsel, to be misleading because the trial court would not have been legally bound by the recommendation for mercy. Id. at 39-40. It reversed not on due process grounds, but found the court’s ex parte response to be a violation of Federal Rule of Criminal Procedure 43. Id. at 39-41. Similarly here, had the trial court provided substantive reinstruction without notice to counsel, that would be a violation of ORCP 59 D, and— had prejudice been established—might warrant reversal. Likewise, had the trial court provided a legally erroneous response, misleading jurors, it would have been grounds for reversal. See, e.g., State v. Crosby, 342 Or 419, 432, 154 P3d 97 (2007) (reversal where court’s “clarifying instruction” on reckless form of murder-by-abuse was erroneous and misleading). But neither reinstruction nor misinstruction occurred here. Defendant’s claim therefore provides no basis for reversal.
CONCLUSION The trial court properly performed its function as gatekeeper, ensuring that the eyewitness identification evidence did not create a very substantial likelihood of misidentification, and that it was for the jury to determine what weight and credibility to give it. No other basis for reversal exists. Therefore, this court should affirm the trial court’s judgment of conviction. Respectfully submitted, JOHN R. KROGER Attorney General ANNA M. JOYCE Solicitor General
/s/ Anna M. Joyce _________________________________ ANNA M. JOYCE #013112 Solicitor General firstname.lastname@example.org Attorneys for Plaintiff-Respondent State of Oregon AMJ:slc/3051129-v1
NOTICE OF FILING AND PROOF OF SERVICE I certify that on October 21 2011, I directed the original Respondent’s Brief on the Merits to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Daniel J. Casey, attorney for appellant, and upon Matthew McHenry, attorney for amicus curiae The Innocence Network, upon Bronson James, attorney for amicus curiae Oregon Criminal Defense Lawyer’s Association, and upon Marc Sussman, attorney for amicus curiae College and University Professors Solomon Fulero et al., by using the court's electronic filing system. CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 13,610. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). /s/ Anna M. Joyce _________________________________ ANNA M. JOYCE #013112 Solicitor General email@example.com Attorneys for Plaintiff-Respondent State of Oregon AMJ:slc
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