State v. Lawson
Opinions
[365] BREWER, C. J.
Defendant, who was convicted of five counts of aggravated murder, ORS 163.095; three counts of attempted aggravated murder, ORS 161.405; and two counts of first-degree robbery, ORS 164.415; raises numerous challenges to his convictions. First, defendant argues that the trial court erred in denying his motion to strike the surviving victim’s in-court identification of him as the perpetrator of the crimes on the ground that the victim’s identification had been tainted by suggestive police procedures. Defendant further argues that the trial court erred in denying his motion for production of documents concerning other shootings, as well as in excluding as irrelevant certain evidence that defendant proffered concerning other shootings. Defendant next argues that the trial court erred in admitting expert testimony concerning a bloody footprint found at the crime scene. Finally, defendant raises several challenges concerning alleged juror misconduct and problems with jury deliberations. We write to discuss only defendant’s arguments concerning the victim’s in-court identification of him. We reject defendant’s remaining arguments without discussion. For the reasons set forth below, we affirm.
Because defendant was convicted, we provide an overview of the facts — other than the facts relating to the victim’s in-court identification of defendant as the perpetrator of the crimes, which will be discussed separately — in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007), cert den, 552 US 1113 (2008).
The victims, Noris and Sheri Hilde, went camping in the Umpqua National Forest at a location called Briggs Camp, arriving on the day of August 21, 2003, at a campsite where Noris had earlier set up a tent. When they arrived with their truck and trailer at the campsite, they found that defendant had moved into their tent. Nobody else was at Briggs Camp. Noris told defendant that the campsite and tent were theirs; defendant explained that he thought the tent had been abandoned, then gathered items from the tent, put them in his truck, and moved to another campsite near the Hilde’s campsite. Shortly thereafter, defendant left that campsite in his truck. Sheri (the surviving victim), described [366] the encounter in detail, as well as describing defendant and his truck. Defendant’s account of what occurred when he encountered the Hildes on the day of August 21, 2003, was consistent with Sheri’s description of what occurred.
At approximately 10:00 p.m. that evening, while Sheri was in their trailer at the campsite, she was shot in the chest from outside the trailer while she was closing a window. Sheri was unable to move her legs, but retained consciousness. Noris turned out the lights in the trailer in order to make it more difficult for the shooter to see them, but turned the lights back on again to locate and then to dial Sheri’s cell phone to call 9-1-1.1 Noris told the 9-1-1 operator that Sheri had been shot, that he believed poachers had shot her, and that he had heard someone drive away. He described their location to the 9-1-1 operator. While he was on the phone with the operator, Noris also was shot and fell to the ground just outside the trailer. He died shortly thereafter.
Sheri heard someone approach the trailer. A man came to the door of the trailer and demanded the keys to their truck. Sheri told him various possible locations where the keys might be found. She heard him searching for the keys, after which he returned and said he could not find them. Sheri asked the intruder if he intended to kill them, and he asked if she had seen his face. She responded that she had not. He then grabbed a cushion off a chair and put it over her face. Sheri slowly turned her head and was able to see the man briefly as he was leaving. Shortly thereafter, the cell phone near Sheri rang, and she was able to answer it. It was the 9-1-1 operator, calling the number that Noris had given during the earlier call.
Sheri told the operator that both she and Noris had been shot and confirmed their location. Emergency personnel arrived while Sheri was on the phone with the operator. The bullet had critically injured Sheri; she remained hospitalized for more than a month after the shooting and spent several months in a rehabilitation facility thereafter.
[367] Based on information that Sheri provided to investigators, as described in more detail below, the investigation of the crimes soon focused on defendant. Sheri had mentioned a yellow truck, and defendant’s yellow truck had been ticketed in a parking lot near the crime scene several days earlier. Several days before the crimes were committed, defendant’s parents had returned home from an extended trip and discovered that one of defendant’s father’s rifles, a .357 Marlin, was missing from his gun case. Defendant, who had been living at his parents’ home, was missing as well. After learning that there had been a shooting, defendant’s parents contacted authorities about defendant and the missing gun, apparently concerned that he may have committed suicide.
Defendant was later located with another relative and interviewed by the police. He admitted that he had taken his father’s rifle and ammunition and that he had been camping in the area where the crimes occurred. He asserted that he had slept in the woods one evening shortly before the shooting, and when he returned to his truck the following day, he discovered that the rifle had been stolen from his truck. Thereafter, he went to Briggs Camp and discovered the Hilde tent, which he believed had been abandoned. He moved into the tent, because he had not brought one with him. As noted, his account of what occurred when the Hildes arrived at Briggs Camp was similar to Sheri’s account. He asserted, however, that he had not returned to Briggs Camp after he had left that day, but spent the night in his truck in a different area.
The police observed an injury on one of defendant’s hands that they believed was consistent with an injury that could have been caused by ejecting a shell casing from a rifle. During the interview, defendant denied committing the crimes against the Hildes. When told that the female victim had survived, defendant expressed disbelief that she had survived.
Other evidence at trial included expert testimony indicating that the bullet fragments recovered from the victim’s bodies could have come from the .357 Marlin rifle and [368] that a bloody shoe-print found at the crime scene was consistent with defendant’s footwear.2
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[365] BREWER, C. J.
Defendant, who was convicted of five counts of aggravated murder, ORS 163.095; three counts of attempted aggravated murder, ORS 161.405; and two counts of first-degree robbery, ORS 164.415; raises numerous challenges to his convictions. First, defendant argues that the trial court erred in denying his motion to strike the surviving victim’s in-court identification of him as the perpetrator of the crimes on the ground that the victim’s identification had been tainted by suggestive police procedures. Defendant further argues that the trial court erred in denying his motion for production of documents concerning other shootings, as well as in excluding as irrelevant certain evidence that defendant proffered concerning other shootings. Defendant next argues that the trial court erred in admitting expert testimony concerning a bloody footprint found at the crime scene. Finally, defendant raises several challenges concerning alleged juror misconduct and problems with jury deliberations. We write to discuss only defendant’s arguments concerning the victim’s in-court identification of him. We reject defendant’s remaining arguments without discussion. For the reasons set forth below, we affirm.
Because defendant was convicted, we provide an overview of the facts — other than the facts relating to the victim’s in-court identification of defendant as the perpetrator of the crimes, which will be discussed separately — in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007), cert den, 552 US 1113 (2008).
The victims, Noris and Sheri Hilde, went camping in the Umpqua National Forest at a location called Briggs Camp, arriving on the day of August 21, 2003, at a campsite where Noris had earlier set up a tent. When they arrived with their truck and trailer at the campsite, they found that defendant had moved into their tent. Nobody else was at Briggs Camp. Noris told defendant that the campsite and tent were theirs; defendant explained that he thought the tent had been abandoned, then gathered items from the tent, put them in his truck, and moved to another campsite near the Hilde’s campsite. Shortly thereafter, defendant left that campsite in his truck. Sheri (the surviving victim), described [366] the encounter in detail, as well as describing defendant and his truck. Defendant’s account of what occurred when he encountered the Hildes on the day of August 21, 2003, was consistent with Sheri’s description of what occurred.
At approximately 10:00 p.m. that evening, while Sheri was in their trailer at the campsite, she was shot in the chest from outside the trailer while she was closing a window. Sheri was unable to move her legs, but retained consciousness. Noris turned out the lights in the trailer in order to make it more difficult for the shooter to see them, but turned the lights back on again to locate and then to dial Sheri’s cell phone to call 9-1-1.1 Noris told the 9-1-1 operator that Sheri had been shot, that he believed poachers had shot her, and that he had heard someone drive away. He described their location to the 9-1-1 operator. While he was on the phone with the operator, Noris also was shot and fell to the ground just outside the trailer. He died shortly thereafter.
Sheri heard someone approach the trailer. A man came to the door of the trailer and demanded the keys to their truck. Sheri told him various possible locations where the keys might be found. She heard him searching for the keys, after which he returned and said he could not find them. Sheri asked the intruder if he intended to kill them, and he asked if she had seen his face. She responded that she had not. He then grabbed a cushion off a chair and put it over her face. Sheri slowly turned her head and was able to see the man briefly as he was leaving. Shortly thereafter, the cell phone near Sheri rang, and she was able to answer it. It was the 9-1-1 operator, calling the number that Noris had given during the earlier call.
Sheri told the operator that both she and Noris had been shot and confirmed their location. Emergency personnel arrived while Sheri was on the phone with the operator. The bullet had critically injured Sheri; she remained hospitalized for more than a month after the shooting and spent several months in a rehabilitation facility thereafter.
[367] Based on information that Sheri provided to investigators, as described in more detail below, the investigation of the crimes soon focused on defendant. Sheri had mentioned a yellow truck, and defendant’s yellow truck had been ticketed in a parking lot near the crime scene several days earlier. Several days before the crimes were committed, defendant’s parents had returned home from an extended trip and discovered that one of defendant’s father’s rifles, a .357 Marlin, was missing from his gun case. Defendant, who had been living at his parents’ home, was missing as well. After learning that there had been a shooting, defendant’s parents contacted authorities about defendant and the missing gun, apparently concerned that he may have committed suicide.
Defendant was later located with another relative and interviewed by the police. He admitted that he had taken his father’s rifle and ammunition and that he had been camping in the area where the crimes occurred. He asserted that he had slept in the woods one evening shortly before the shooting, and when he returned to his truck the following day, he discovered that the rifle had been stolen from his truck. Thereafter, he went to Briggs Camp and discovered the Hilde tent, which he believed had been abandoned. He moved into the tent, because he had not brought one with him. As noted, his account of what occurred when the Hildes arrived at Briggs Camp was similar to Sheri’s account. He asserted, however, that he had not returned to Briggs Camp after he had left that day, but spent the night in his truck in a different area.
The police observed an injury on one of defendant’s hands that they believed was consistent with an injury that could have been caused by ejecting a shell casing from a rifle. During the interview, defendant denied committing the crimes against the Hildes. When told that the female victim had survived, defendant expressed disbelief that she had survived.
Other evidence at trial included expert testimony indicating that the bullet fragments recovered from the victim’s bodies could have come from the .357 Marlin rifle and [368] that a bloody shoe-print found at the crime scene was consistent with defendant’s footwear.2
As noted, the issue before us on appeal concerns Sheri’s in-court identification of defendant as the perpetrator of the crimes. Accordingly, we describe the evidence pertinent to the legal analysis of that issue in some detail. When emergency personnel arrived on the scene in response to the 9-1-1 call, an EMT asked Sheri who had shot them, and she replied, “I don’t know.” The EMT later asked again if she knew who did it and whether they were in a vehicle, to which Sheri replied, “I don’t know. They wanted our car[, ]our truck.” At trial, Sheri testified that she did not initially disclose that the man who had been at the campground earlier in the day — defendant—was the shooter because she was afraid that defendant was still there. She further testified that she continued to refuse to tell medical personnel who had shot them because of her fear of defendant.
Deputy Mapes, the first police officer to interview Sheri after the shooting, spoke with her while she was in the ambulance. He testified that she told him that the perpetrator had been wearing a black shirt and baseball cap with white letters. However, Sheri did not indicate that she had seen the perpetrator earlier in the day at the campground. She told Mapes that the perpetrator said that he was not going to kill her because she had not seen his face.
Sheri testified that, while she was being transported by ambulance, she was informed that Noris was dead. At that point, she told ambulance personnel that the shooter was the man who had been in the campground earlier in the day. An ambulance attendant confirmed that Sheri had stated that the man who shot her was wearing a dark shirt and cap and that she had seen him earlier that day in the campground. When Sheri was transferred to a life-flight helicopter, she told one of the medical personnel that a young man had shot her and that he had a yellow truck. Defendant adduced evidence at trial that Sheri also made a statement to medical personnel at one point that she believed that the life-flight helicopter pilot was the man who had shot her.
[369] On August 23, Sergeant Kipp of the Oregon State Police visited Sheri in the hospital and showed her a photo throwdown containing defendant’s picture, but she was unable to identify defendant as the perpetrator.3 Although she was unable to speak due to her critical medical condition, Sheri indicated in response to Kipp’s leading questions that she had seen the perpetrator, that he had been wearing a baseball cap, that he had earlier been in their campsite in their tent, and that he had a yellow truck. She later explained at trial that her eyes were very watery when Kipp interviewed her, and she was on morphine, so was unable to pick out the details of the photos.4
Detective Merrifield interviewed Sheri at the hospital on September 3. She was still in the critical care unit, but was able to communicate briefly through whispers, although Merrifield had some difficulty understanding her. She indicated that the perpetrator had been looking for the keys, that she would have given them to him, and that he had put a pillow over her face. A hospital worker who was present during that interview testified that Sheri had indicated that it had been dark, that there had been a pillow over her face, and that Sheri was apologetic that she could not see the attacker.
On September 22, Merrifield visited Sheri in the hospital again, at which point she was able to talk, although she was very shaky due to medication. He showed her a photo throwdown, again containing defendant’s picture, and Sheri again was unable to pick out defendant.5 At trial, she testified that she could not see the photos very clearly at that time, because the pictures were too small. She did, however, identify a large photo of defendant’s truck as the one that had been at the campsite earlier on the day of the shooting.6 [370] According to Merrifield’s report and testimony, Sheri told him during that interview that the man who entered the trailer to demand the keys was wearing a dark shirt and baseball cap like the man who had been at their campsite earlier in the day had been wearing. Sheri asked Merrifield if the perpetrator had been apprehended, because she was afraid that he would return to kill her or her family. Merrifield assured her that they had a person in custody for the crimes.
On October 1, Merrifield returned to the hospital to interview Sheri again and was accompanied by Kipp, who had previously interviewed Sheri on August 23. Sheri expressed concern that she had not had a direct view of the person who had shot them, that she had seen only his profile, and that that would not be an identification that she could testify to in court. She added, however, that the shooter was the man who had been in the camp earlier in the day. She explained that the man had a thin build, was wearing a baseball cap, and had a dark shirt. She further told Merrifield, however, that “she didn’t think she could swear it was him, because she only saw his face in profile.” Kipp asked Sheri if she would be willing to look at a profile lineup, and she indicated that she did not know if she could do that. Toward the end of the interview, Merrifield told Sheri that “the man that you’ve identified is the person that we have in custody,” and he identified defendant by name.
Later in October, Sheri was released from the hospital and transferred to a rehabilitation facility, where she stayed until December. While she was at the rehabilitation facility, a person who worked there showed her a newspaper photograph of defendant, which identified him as the person who had been arrested for the crimes.
Approximately one month before trial — and approximately two years after the crimes — Merrifield showed Sheri a single photograph of defendant that had been taken the day after the shooting. At that point, she identified defendant as the man who had entered the trailer, put the pillow over her face, and demanded the truck keys. At around the same time, [371] Merrifield also brought Sheri to the courthouse to observe defendant during a pretrial hearing.
Sheri and Merrifield also testified that, about a month before trial — after Merrifield had shown her the individual picture of defendant and she had seen defendant at the pretrial hearing — as she was working with the prosecution to prepare for trial, Sheri had inadvertently come across a photo throwdown that was among the crime scene photos, and she had spontaneously identified defendant from among the six individuals shown there.
Defendant called as a witness Dr. Daniel Reisberg, an expert in assessing the accuracy of eyewitness identification. In closing argument, defendant’s attorney described in detail Reisberg’s testimony as he wove that testimony into his theory of defense:
“And I’m going to go into some detail on this, because every rule that could possibly have been broken in how you approach a purported eyewitness and to gather the evidence — and I’m going to talk a lot about Dr. Reisberg and what he presented here, because Dr. Reisberg really laid it out. I’m going to go into some detail, and I ask you to bear with me, because what he had to say here, some of it is common sense, some of it’s not, but what is not common sense is built on the soundest scientific research that we have. And this isn’t stuff that was just developed yesterday. This is research that’s gone on over 20, 30 years, it’s going on today, it’s been peer reviewed, and it is so well accepted that the United States Department of Justice actually brought people in like Dr. Reisberg to * * * consult with prosecutors, police, the attorney general of the United States, to say we have to do something about these — -what we know are these wrongful convictions that are based upon, more than any other factor, mistaken eyewitness ID’s. Not lying, but that the way the investigations are conducted have a contaminating effect, and it’s been proven so much that the United States government has recognized it.
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“* * * And I’m going to get into some of what Dr. Reisberg told you about. When you start getting feedback from * * * someone in a position of authority and someone who you [372] trust, there’s a danger sign right there, and the feedback. * * *
“Now, Dr. Reisberg * * * [testified] 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. * * *
* * * ‡
“* * * And Sergeant Kipp * * * every question he asked [Sheri] by nature of the interview had to be * * * all leading questions.
“And Dr. Reisberg said that’s one of the factors that can lead to a bad ID. It’s that power of suggestion, particularly when someone is in a vulnerable situation. No one could have been more vulnerable or susceptible than [Sheri] was when she was interviewed on August 23rd, when she was in that horrible state.
* * * *
“* * * When you’re asked the same question over, when the same topic is covered over and over, it becomes more and more familiar, and you get that confidence malleability. Do you remember [Reisberg] talked about that? * * * [T]hey’ve scientifically proved that there’s no correlation between confidence and accuracy.”
Defense counsel emphasized the foregoing theme throughout his argument. At the beginning of his closing argument, counsel said:
“But this case is built on the foundation of sand. * * * And that’s on this so-called identification by [Sheri], Now, with the greatest respect for [Sheri], 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. [Sheri] doesn’t know what the truth is any more. She has been so contaminated by the police in this case.”
[373] At defendant’s request, and consistently with his primary theory of defense, the trial court instructed the jury as follows:
“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.”7
Defendant contended at trial, and reiterates his argument on appeal, that Sheri should not have been permitted to make an in-court identification of defendant as the perpetrator of the crimes because “unduly suggestive” pretrial identification procedures had been used. In particular, defendant asserts that, after several unsuccessful attempts to have Sheri identify defendant’s photo in a photo throwdown, police had shown her an individual photo of defendant and had had her view defendant in person during a pretrial hearing, which had compromised her ability to make a reliable in-court identification of defendant as the perpetrator of the crimes.
In State v. Classen, 285 Or 221, 232, 590 P2d 1198 (1979), the Supreme Court explained the reasons, grounded in due process concerns, for excluding in-court identification of defendants by witnesses after unduly suggestive identification procedures had been used:
“[T]he unreliability of eyewitness identification under suggestive circumstances is widely recognized, and * * * the [374] procedures used to minimize this unreliability bear on the admissibility of evidence of such identification. As a practical matter, in the context of a motion by a defendant to suppress identification evidence on the ground that it is the product of a suggestive procedure, the decision on its admissibility involves two steps. First, the court must determine whether the process leading to the offered identification was suggestive or needlessly departed from procedures prescribed to avoid such suggestiveness. If so, then the prosecution must satisfy the court that ‘the proffered identification has a source independent of the suggestive confrontation’ or photographic display, see Commonwealth v. Botelho, 369 Mass 860, [343 NE 2d 876] (1976) (citing cases), or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure.”
(Footnote omitted.)
In this case, the trial court resolved the first issue— whether the process leading to the identification was suggestive or needlessly departed from procedures prescribed to avoid suggestiveness — in defendant’s favor, concluding that Merrifield’s actions in showing Sheri an individual picture of defendant and having her view defendant during a pretrial hearing constituted suggestive processes. The state does not dispute on appeal that the trial court correctly concluded that those actions were unduly suggestive. We conclude that the state’s concession on that issue is well-taken, and accept it.
The remaining question, as the court framed it in Classen, is whether the identification had a source independent of the suggestive identification procedures, or “other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure.” Id. at 232; see also State v. Davie, 56 Or App 507, 513, 642 P2d 680, rev den, 293 Or 146 (1982) (framing the question as “whether under the totality of the circumstances, the identifications were nevertheless reliable and therefore admissible”). On this question, “[t]he state bore the burden of proving that the identifications were based on a source independent of the suggestive confrontation.” Id.
[375] The court in Classen identified a nonexclusive list of pertinent factors to be considered in making that determination:
“These include the opportunity that the witness had at the time to get a clear view of the persons involved in the crime and the attention he or she gave to their identifying features, the timing and completeness of the description given by the witness after the event, the certainty expressed by the witness in that description and in making the subsequent identification, and, of course, the lapse of time between the original observation and the subsequent identification. These are not to be taken as a mechanical checklist of ‘constitutional’ facts. Obviously other facts may also be important, such as the age and sensory acuity of the witness, see State v. Bush, 29 Or App 315, 563 P2d 747 (1977), or a special occupational concern with people’s appearance or physical features, or the frequency of his or her contacts with individuals sharing the general characteristics of the person identified, see Manson v. Brathwaite, 432 US [98, 115, 97 S Ct 2243, 53 L Ed 2d 140 (1977)]. Listing these and other relevant inquiries must not distract attention from the ultimate issue whether an identification made in a suggestive procedure has nevertheless been demonstrated to be reliable despite that suggestiveness.”
Classen, 285 Or at 232-33 (footnote omitted).
The test set forth in Classen was loosely based on the test applied by the United States Supreme Court in Manson, 432 US at 115-16, which, in turn, had been developed in earlier cases such as Foster v. California, 394 US 440, 89 S Ct 1127, 22 L Ed 2d 402 (1969), and Neil v. Biggers, 409 US 188, 93 S Ct 375, 34 L Ed 2d 401 (1972). Those decisions, in turn, were based on an earlier trilogy of cases that the United States Supreme Court decided in 1967, where the Court recognized that the process by which a witness is given an opportunity to identify a suspect represents a “critical stage” in a criminal prosecution. United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967); Gilbert v. California, 388 US 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967); Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967). Although Wade and Gilbert involved the protection of the presence of defense counsel at this “critical stage,” Stovall stated that evidence of a pretrial identification must be [376] excluded if, under “the totality of the circumstances surrounding it,” the identification procedure was “so unnecessarily suggestive and conducive to irreparable mistaken identification” that it fell short of due process of law. 388 US at 302. For context, we briefly describe the Foster, Biggers, and Manson cases.
In Foster, a robbery victim viewed a lineup of three people, but two were not similar in height to the defendant and were not dressed as the robber had been dressed. The victim believed that the defendant was the robber but was unable to make a positive identification. The defendant was then brought before the witness individually, and the witness remained unsure. Finally, the defendant was brought before the victim in a lineup, but the defendant was the only person in the lineup who had been in the previous lineup. At that point, the victim identified the defendant as the robber. 394 US at 441-42. The Court concluded that the suggestive police procedures made it “all but inevitable” that the victim would identify the defendant, “whether or not he was in fact ‘the man.’ ” Id. at 443.
In Biggers — the first case to develop a comprehensive list of the factors relevant to the inquiry — the Court stated that the following factors are pertinent to a determination of whether unduly suggestive pretrial procedures should require exclusion of an in-court identification:
“[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”
409 US at 199. In that case, the victim of a rape described her attacker as “fat and flabby with smooth skin, bushy hair and a youthful voice,” and further described him as “between 16 and 18 years old and between five feet ten inches and six feet tall, as weighing between 180 and 200 pounds, and as having a dark brown complexion.” Id. at 194. Seven months after the crime, the victim was brought to the police station and the [377] respondent was required to walk past her and say the same words that the attacker had said during the rape. The victim asserted that she had “no doubt” that the respondent was the attacker. Id. at 195. In a habeas corpus proceeding, the federal district court held that the identification procedure had been unduly suggestive; the Court addressed whether, in the totality of the circumstances, “the identification was reliable even though the confrontation procedure was suggestive.” Id. at 199. The Court concluded that it was:
“The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant’s approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had ‘no doubt’ that respondent was the person who raped her. * * *
* * * *
“There was, to be sure, a lapse of seven months between the rape and the confrontation. This would be a seriously negative factor in most cases. Here, however, the testimony is undisputed that the victim made no previous identification at any of the showups, lineups, or photographic showings [which had not included the respondent]. Her record for reliability was thus a good one, as she had previously resisted whatever suggestiveness inheres in a showup. Weighing all the factors, we find no substantial likelihood of misidentification.”
Id. at 200-01 (footnote omitted).
In Manson, an undercover police officer bought drugs from a man whom he described as “a colored man, approximately five feet eleven inches tall, dark complexion, black hair, short Afro style, and having high cheekbones, and of heavy build.” 432 US at 101. The officer also described the man’s clothing. Based on that description, another officer left a photo of the defendant on the undercover officer’s desk [378] because he thought the description matched the defendant. The undercover officer saw the photo two days after making the drug deal and identified the defendant. Seven months later, at trial, the officer positively identified the defendant. Id. at 101-02. The Court, after agreeing that the photo identification procedure had been suggestive, considered five factors — those identified in the Biggers case — that it deemed should “be weighed [against] the corrupting effect of the suggestive identification itself.” Id. at 114.
As to the first factor, the opportunity to view the perpetrator during the crime, the Court noted that the undercover officer was within two feet of the defendant, for two to three minutes, and “it was not dark or even dusk or twilight.” Id. The second factor that the Court considered was the officer’s degree of attention. It noted that the officer was specially trained to pay attention to detail and, being of the same race as the defendant, was “unlikely to perceive only general features[.]” Id. at 115. The third factor was the accuracy of the officer’s description made “within minutes” of the drug deal, which included “the vendor’s race, his height, his build, the color and style of his hair, and the high cheekbone facial feature,” as well as clothing. Id. The fourth factor was the officer’s certainty that the photo was that of the defendant. And the final factor was the timing: The undercover officer’s “description of his vendor was given to [the second officer] within minutes of the crime. The photographic identification took place only two days later. We do not have here the passage of weeks or months between the crime and the viewing of the photograph.” Id. at 115-16. The Court ultimately concluded that, in the totality of circumstances, there was not “a very substantial likelihood of irreparable misidentification” and, therefore, held that the identification evidence was admissible. Id. at 116.
The Oregon Supreme Court’s application of its similar test in Classen involved factors that were much the same. In Classen, the victim hired two men to do yard work. One man, a black man, asked to use the toilet; the victim agreed and, after the man failed to return in a few minutes, she became suspicious. She entered her house and found that it [379] had been burglarized, and the man who had asked to use the toilet was gone; on returning outside, she found that the other man (a white man) also had left. Classen, 285 Or at 233. On the same day, the victim provided a description of the white man as “five feet four inches tall, slender, weighing 150 pounds, with short light brown hair and a Vandyke beard.” Id. at 234. Seven months later, the victim was shown a photo throwdown with seven pictures; all had mustaches, but none other than defendant had a beard. After being told that the officer suspected that the perpetrator of the crime was among the seven, the victim, with some degree of hesitation, eventually selected the defendant’s photo. Id. at 234-35.
After setting out the test described above, the court concluded that the victim should not have been permitted to make the in-court identification. First, the court noted that the victim’s opportunity to view the defendant, “in daylight, under conditions when she would give her attention to [him], and without distracting elements of fear or stress,” weighed in favor of admission of the evidence. Id. at 236-37. The court noted, however, that the obverse might be true in some cases, where “the stress of confrontation with a criminal has been cited as making for a high degree of attention and impressing the defendant’s picture on the victim’s memory.” Id. at 237 n 11. On the other hand, the court noted, the photo throw-down did not occur for seven months after she had seen the defendant, “her identification of [the] defendant’s photograph at that time cannot be described as very positive,” and, by her own description “at the time I just didn’t pay that much attention.” Id. at 237. Given those weaknesses, the court concluded that “the state ha[d] not carried [its] burden.” Id. at 238.8
[380] In the present case, the trial court noted that Sheri had had a significant opportunity to observe defendant in the campground on the day of the crime and had noted his demeanor, his “loping” walk, and that he was wearing a dark shirt and black cap with white lettering. The trial court then made the following findings and conclusions concerning the second portion of the Classen test:
«2 * * *
Hi * * *
“b. * * * It is the opinion of the court that Ms. Hilde’s in-court identification of the defendant is based on her personal observations of the defendant on August 21, 2003. Ms. Hilde 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 shootings, Ms. Hilde saw the defendant’s profile from a relatively short distance, observed his attire and heard his voice. She is certain that the ‘man’ that [381] was in their camp site on the morning of August 21, 2003, is the same ‘man’ that shot her husband and herself later that evening.
«c. * * * Given the finding that Ms. Hilde’s in-court identification of the defendant is based on her personal observations, the reliability and probative value of the identification under the circumstances is a question for the jury.”
We are bound by the trial court’s findings of historical fact on this issue. State v. Najibi, 150 Or App 194, 197-98, 945 P2d 1093 (1997), rev den, 326 Or 464 (1998); Davie, 56 Or App at 513. We are not, however, bound by the conclusions that the trial court drew from the facts, if those facts do not support the conclusions. Najibi, 150 Or App at 198; Davie, 56 Or App at 513.
The first factor identified in Classen is “the opportunity that the witness had at the time to get a clear view of the persons involved in the crime.” Classen, 285 Or at 232. The focus of that inquiry is on Sheri’s opportunity to perceive the man who came to the trailer after she had been shot, which occurred “at the time” of the crime. As pertinent to the first factor, the trial court found that Sheri “saw the defendant’s profile from a relatively short distance, observed his attire and heard his voice.” Those findings are supported by the record. But as defendant notes, several other facts are pertinent here, as well: The observation occurred some time after 10:00 p.m. in a trailer that either was unlit or was dimly lit; the observation was brief; Sheri was observing the man covertly, because he had put a pillow over her face to prevent her from seeing him; she saw him only in profile; at the time she saw him, she was suffering from a painful and indeed life-threatening gunshot wound.
As the cases we have cited demonstrate, some of these facts could support an inference either in support of, or against, the strength of the identification. As noted in Classen, “fear or stress” (which undoubtedly were present in these circumstances) might be classified as “distracting elements” or might “mak[e] for a high degree of attention and impressing the defendant’s picture on the victim’s memory.” [382] 285 Or at 237 n 11. Given Sheri’s testimony that she deliberately and surreptitiously moved her head in order to see the perpetrator, we conclude that her glance at him, although fleeting, was not the sort of casual observation of which the court was dismissive in Classen. Thus, although Sheri viewed the perpetrator only briefly, and in circumstances that certainly were not optimal for viewing, we conclude that at least certain aspects of this factor weigh in favor of a conclusion that Sheri’s identification was independently reliable.
The second factor concerns “the timing and completeness of the description given by the witness after the event.” Id. at 232-33. Sheri’s ability to provide a description of the events that occurred, or of the perpetrator, was compromised by a life-threatening injury that left her in severe pain and with limited ability to communicate for a long period of time after the crimes occurred. We reiterate the evidence concerning how she described the perpetrator after the crimes: When the first responders arrived at the scene, Sheri told them, in response to questions, that she didn’t know who had shot them. However, she told an officer at the scene that the perpetrator had been wearing a black shirt and a baseball cap with white letters. She repeated the description of the shirt and cap while in the ambulance, and further indicated that the perpetrator had been a young man whom she had seen earlier in the day. At some point on the way to the hospital or shortly after she arrived, she also indicated a belief that the helicopter pilot was the perpetrator.
When interviewed two days after the shooting, Sheri stated that the perpetrator had worn a baseball cap and had been at their campsite earlier in the day. In an interview approximately two weeks after the shooting, Sheri indicated that it had been dark and was apologetic that she couldn’t see the perpetrator, but in an interview several weeks after that, she again mentioned the dark shirt and the baseball cap and that the man had been at the campsite earlier on the day of the shooting.
In her interview with police on October 1, Sheri reiterated the description of the shirt and cap and her belief that [383] it had been the same man who had been at the campsite earlier in the day. Although she expressed concerns about her ability to identify him because she had only seen his profile, she did not express doubts as to who the perpetrator was. As noted, after that point, Sheri learned that the person she had seen earlier that day in the campsite (defendant) had been arrested, and on various occasions, she saw either defendant or his picture in circumstances where she was aware that he was the person who had been arrested for the crimes.
To summarize, the evidence concerning timing and completeness of the description given by Sheri in the days and weeks after the crimes was somewhat sketchy, due to Sheri’s extremely serious physical injuries. Her description of the perpetrator’s shirt and cap was consistent, if not highly detailed. There were some inconsistencies in what she said. Moreover, none of those descriptions was of specific features, such as eye color, hair color, or distinguishing characteristics. Nonetheless, Sheri stated on numerous occasions that she had recognized the perpetrator as the same man who had been in the campsite earlier in the day.9 In sum, in the weeks and months after the crime, although Sheri did not recognize photos of defendant, she did maintain that she had recognized him because of the earlier encounter. Compare State v. Ray, 157 Or App 601, 605, 971 P2d 490 (1998) (witness identification of perpetrator had sufficient independent source because the witness had interacted with the defendant during earlier encounters and immediately knew who he was).
The third factor discussed in Classen is “the certainty expressed by the witness in making that description and in making the subsequent identification[.]” 285 Or at 233. The trial court emphasized Sheri’s certainty that the man she had seen earlier in the camp was the man she saw later, after the shooting. Because Sheryl made that assertion on several occasions after the shooting, including to one of the [384] EMTs who treated her on the night of the shooting, to an investigating detective on August 23, and again to officers on October 1, it is fair to say that, before the in-court identification, she had on multiple occasions asserted that the shooter and the man in the campground were one and the same person. Sheri also indicated at trial that she was certain of her in-court identification of defendant as the perpetrator. Arguably her confidence in her pretrial assertions that she recognized defendant may be somewhat undermined by the fact that she denied, at some points, that she had seen the perpetrator, expressed doubts as to her ability to identify the perpetrator, and identified the helicopter pilot as the perpetrator, as well as her earlier unsuccessful attempts to identify the perpetrator in photo throwdowns. Nonetheless, her certainty, and her opportunity to have seen defendant earlier in the campground, weigh in favor of the identification. See, e.g., Biggers, 409 US at 200-01 (victim’s expression of “no doubt” as to perpetrator’s identity weighed in favor of admission of identification).
The next factor listed in Classen is the lapse of time between the original observation and the subsequent identification. Id. Here, the suggestive police procedures and in-court identification occurred approximately two years after the crime. Although there is no bright-line rule concerning lapse of time, there is no doubt that a two-year lapse is a significant amount of time and does not weigh in favor of a conclusion that the identification had an independent and reliable source.
Finally, we note that the list of pertinent factors stated in Classen is nonexclusive, and one of the factors considered by the United States Supreme Court in Foster and later in Biggers seems pertinent to our inquiry. In Foster, as in the present case, there were several unsuccessful attempts by the witness to make a positive identification. There, the witness failed to make positive identification twice, despite suggestive procedures. 394 US at 443. Here, Sheri failed to make positive identifications twice when shown photo throw-downs with defendant’s photos included, and declined to try to identify defendant in a line-up. In this case, however, the initial photo throwdowns were not, in fact, suggestive. Moreover, the record amply demonstrates the reasons why Sheri [385] was unable to identify defendant from those photo throw-downs; she testified that her physical condition was such that she was unable to make out the details of the pictures.
We conclude that, in the totality of the circumstances, the weighing of the factors in this case leads to a conclusion that the in-court identification had a sufficiently reliable, independent source. Although, as noted, consideration of some of the factors support the identification and some do not, as a whole, we believe that the trial court correctly concluded that the determination of the reliability of Sheri’s identification of defendant as the perpetrator of the crimes was properly left to the jury.
In reaching that conclusion, we pause to pay respect to the thoughtful competing analysis that Judge Sercombe has proffered in dissent. As far as appears to us, we and the dissent do not disagree about the evidentiary record in this case, nor do we differ in our understandings of the governing legal principles. Where we part company is over the deliberative, and admittedly difficult, weighing of the reliability of the challenged evidence under the nonexclusive, multifactorial, methodology that the Supreme Court adopted in Classen.
The vagaries of eyewitness identification are well known; the annals of criminal law are laden with examples of mistaken identification. See Wade, 388 US at 228. In the years since the United States Supreme Court decided Manson, the notion that a witness’s certainty in his or her identification of a person as a perpetrator also reflected the witness’s accuracy has been “flatly contradicted by well-respected and essentially unchallenged empirical studies.” State v. Long, 721 P2d 483, 491 (Utah 1986).10 On the one hand, eyewitness testimony is often believable and can wield considerable influence over jury decisions; on the other hand, eyewitness testimony can be flawed merely owing to the normal and natural memory processes that occur whenever [386] human beings acquire, retain, and attempt to retrieve information. Elizabeth Loftus, Eyewitness Testimony 7 (1979). “An important body of psychological research undermines the lay intuition that confident memories of salient experiences...are accurate...[T]he mere fact that we remember something with great confidence is not a powerful warrant for thinking it true * * * [Accuracy of recollection is not highly correlated with the recollector’s confidence[.]” Krist v. Eli Lilly Co., 897 F2d 293, 296 (7th Cir 1990) (emphasis in original).11 Moreover, unless those problems are elucidated at trial, jurors may not be aware of the likelihood or frequency with which misidentifications are made by confident witnesses. Reed v. State, 687 NE2d 209, 213 (Ind App 1997).
Having acknowledged those concerns, we observe that the rule adopted in Classen and the United States Supreme Court decisions on which it was grounded is unique in its wariness of a jury’s ability to weigh conflicting credibility evidence. Neither the latter Court nor the Oregon Supreme Court has extended the trial court’s gatekeeper role in determining the reliability of percipient witness testimony for due process purposes beyond the narrow setting of eyewitness identification. State v. Bumgarner, 219 Or App 617, 632, 184 P3d 1143 (2008), rev den, 345 Or 175, cert den,_ US_, 129 S Ct 927, adh’d to as mod on recons, 229 Or App 92, 209 P3d 857 (2009). The difficulty with extending that role too far even in that narrow setting is that, in the crucible of the adversary process, a jury is usually in no worse position than a judge acting in a gatekeeper’s capacity to determine the effect, if any, of improperly suggestive police techniques on the accuracy of eyewitness identification testimony. Thus, short of “a very substantial likelihood of irreparable misidentification,” identification evidence is for the jury to weigh. Manson, 432 US at 116 (“We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”).
[387] Here, the accuracy of the challenged identification was hotly contested at trial, and defendant had ample opportunity to controvert it. Any potential for jury adoption of a misidentification was substantially lessened by defense counsel’s methodical cross-examination of Sheri and the police investigators, and defendant’s expert witness’s testimony that vigorously challenged the jury to question the accuracy of the identification. Simmons v. United States, 390 US 377, 384, 88 S Ct 967, 19 L Ed 2d 1247 (1968). As an additional safeguard, at defendant’s request — and largely in the terms that defendant requested — the trial court extensively instructed the jury with respect to the reliability of eyewitness identification. See State v. Schroeder, 55 Or App 932, 938, 640 P2d 688, rev den, 293 Or 373 (1982) (stating that, generally, the decision whether to instruct the jury on the reliability of eye witness identification will depend on the trial court’s perception of its desirability in each case); see also Young v. Sirmons, 486 F3d 655, 666 (10th Cir 2007), cert den, 552 US 1203 (2008) (treating the giving of such a cautionary instruction as a factor in the due process analysis). Due process should require no more.
As noted above, we reject defendant’s remaining assignments of error. We pause, however, to note that one of them involves a challenge to the trial court’s in camera inspection of documents to which defendant asserts he was entitled under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963), and we reject that assignment of error after having inspected the documents in question.
Affirmed.
Footnotes
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