Kniss v. Cupp

Court of Appeals of Oregon

Kniss v. Cupp

558 P.2d 364, 27 Or. App. 815, 1976 Ore. App. LEXIS 1527

CourtCourt of Appeals of Oregon

DecidedDecember 20, 1976

DocketNo. 420 082, CA 6581

StatusPublished

Cited by3 cases

This text of 558 P.2d 364 (Kniss v. Cupp) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kniss v. Cupp, 558 P.2d 364, 27 Or. App. 815, 1976 Ore. App. LEXIS 1527 (Or. Ct. App. 1976).

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Opinion

SCHWAB, C. J.

This is an appeal from the trial court’s denial of petitioner’s request for post-conviction relief.

On August 19, 1967, two men robbed a market in Portland. Two witnesses to the robbery, Walton and Mewhinney, viewed photographic displays containing petitioner’s photograph on August 23. Walton identified petitioner as one of the two robbers; Mewhinney stated that petitioner was not one of the two robbers. On August 25 a lineup was held, and Walton identified petitioner as one of the two robbers. Walton that day signed a complaint charging petitioner with the robbery. Later that evening, a second lineup was viewed by Mewhinney and his wife who also witnessed the robbery. Both failed to identify petitioner. Counsel for petitioner was not present at either lineup. At petitioner’s trial, Walton and the Mewhinneys, in the absence of any objection by petitioner, identified petitioner as one of the robbers.

In 1975, this petition for post-conviction relief was filed challenging the 1968 conviction on two grounds: (1) that petitioner was denied his right to counsel at the two lineups; and (2) that the prosecution improperly suppressed the police report of Mewhinney’s statement, upon viewing the photographic display, that petitioner was not one of the robbers.

The state argues that the failure of petitioner to object at trial to the testimony of Walton and the Mewhinneys bars his claim now that he was denied counsel at the lineups. North v. Cupp, 254 Or 451, 456, 461 P2d 271 (1969), cert denied 397 US 1054 (1970), holds that an objection at trial is a prerequisite to the assertion of error in a petition for post-conviction relief. Petitioner maintains, however, that his case falls within an exception to the North rule which would allow post-conviction relief in the absence of an objection at trial "where the objection could conceivably have been made but could not reasonably have been expected” because "the right subsequently sought [818]*818to be asserted was not generally recognized to be in existence at the time of trial.” 254 Or at 456-57.

Petitioner’s trial followed by six months the decision in United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967), which held that the right to have counsel present at a lineup attached whenever the lineup occurred at "a critical stage of the prosecution.” Petitioner maintains that since the holding of Wade was that a post-indictment lineup occurred at such a critical stage, he could not have been expected to object to the testimony of witnesses who viewed pre-indictment lineups. We disagree. The decision in Wade, which was cast in broad terms, was immediately applied by courts throughout the country to lineups occurring prior to an indictment.¹ Petitioner could have reasonably been expected to object to the testimony of Walton and the Mewhinneys, and, in the absence of a claim that petitioner’s counsel was incompetent, a claim specifically disavowed by petitioner, the petition for post-conviction relief on the grounds that petitioner was denied counsel at the pretrial lineups is barred by North v. Cupp, supra.

Petitioner also asserts that the court erred in finding that the prosecution did not suppress the police report of Mewhinney’s statement, upon viewing the photographic display, that petitioner was not one of the robbers.² The court heard the testimony of both defendant’s trial attorney and the prosecutor and examined the transcript from the trial. After reviewing that evidence, we conclude that the post-conviction [819]*819court did not err in holding that petitioner had not met his burden of proving that the police report was suppressed. See ORS 138.620(2).³

Affirmed.

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SCHWAB, C. J.

This is an appeal from the trial court’s denial of petitioner’s request for post-conviction relief.

On August 19, 1967, two men robbed a market in Portland. Two witnesses to the robbery, Walton and Mewhinney, viewed photographic displays containing petitioner’s photograph on August 23. Walton identified petitioner as one of the two robbers; Mewhinney stated that petitioner was not one of the two robbers. On August 25 a lineup was held, and Walton identified petitioner as one of the two robbers. Walton that day signed a complaint charging petitioner with the robbery. Later that evening, a second lineup was viewed by Mewhinney and his wife who also witnessed the robbery. Both failed to identify petitioner. Counsel for petitioner was not present at either lineup. At petitioner’s trial, Walton and the Mewhinneys, in the absence of any objection by petitioner, identified petitioner as one of the robbers.

In 1975, this petition for post-conviction relief was filed challenging the 1968 conviction on two grounds: (1) that petitioner was denied his right to counsel at the two lineups; and (2) that the prosecution improperly suppressed the police report of Mewhinney’s statement, upon viewing the photographic display, that petitioner was not one of the robbers.

The state argues that the failure of petitioner to object at trial to the testimony of Walton and the Mewhinneys bars his claim now that he was denied counsel at the lineups. North v. Cupp, 254 Or 451, 456, 461 P2d 271 (1969), cert denied 397 US 1054 (1970), holds that an objection at trial is a prerequisite to the assertion of error in a petition for post-conviction relief. Petitioner maintains, however, that his case falls within an exception to the North rule which would allow post-conviction relief in the absence of an objection at trial "where the objection could conceivably have been made but could not reasonably have been expected” because "the right subsequently sought [818]*818to be asserted was not generally recognized to be in existence at the time of trial.” 254 Or at 456-57.

Petitioner’s trial followed by six months the decision in United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967), which held that the right to have counsel present at a lineup attached whenever the lineup occurred at "a critical stage of the prosecution.” Petitioner maintains that since the holding of Wade was that a post-indictment lineup occurred at such a critical stage, he could not have been expected to object to the testimony of witnesses who viewed pre-indictment lineups. We disagree. The decision in Wade, which was cast in broad terms, was immediately applied by courts throughout the country to lineups occurring prior to an indictment.¹ Petitioner could have reasonably been expected to object to the testimony of Walton and the Mewhinneys, and, in the absence of a claim that petitioner’s counsel was incompetent, a claim specifically disavowed by petitioner, the petition for post-conviction relief on the grounds that petitioner was denied counsel at the pretrial lineups is barred by North v. Cupp, supra.

Petitioner also asserts that the court erred in finding that the prosecution did not suppress the police report of Mewhinney’s statement, upon viewing the photographic display, that petitioner was not one of the robbers.² The court heard the testimony of both defendant’s trial attorney and the prosecutor and examined the transcript from the trial. After reviewing that evidence, we conclude that the post-conviction [819]*819court did not err in holding that petitioner had not met his burden of proving that the police report was suppressed. See ORS 138.620(2).³

Affirmed.

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558 P.2d 364, 27 Or. App. 815, 1976 Ore. App. LEXIS 1527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kniss-v-cupp-orctapp-1976.

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