State v. Delatorre-Vargas
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FILED: March 07, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOSE HUBER DELATORRE-VARGAS, Defendant-Appellant. Yamhill County Circuit Court CR070343 A141725 Carroll J. Tichenor, Judge. Argued and submitted on April 11, 2011. Bronson D. James argued the cause for appellant. With him on the brief was Bronson James, LLC. Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.* SERCOMBE, P. J. Reversed and remanded. *Brewer, C. J., vice Rosenblum, S. J. 1 SERCOMBE, P. J. 2 Defendant was convicted of two counts of first-degree robbery, ORS 3 164.415, one count of first-degree burglary, ORS 164.225, one count of aggravated first- 4 degree theft, ORS 164.057, two counts of coercion, ORS 163.275, one count of unlawful 5 use of a weapon, ORS 166.220, two counts of menacing, ORS 163.190, and one count of 6 attempted interference with making a report, ORS 161.405(2)(e); ORS 165.572. On 7 appeal, he contends that the trial court erred in denying his pretrial motion to suppress 8 out-of-court photographic and voice identifications made by two witnesses. He argues 9 that the identifications were irreparably tainted by suggestive police procedures. We 10 conclude that the identifications were obtained using suggestive procedures and that the 11 state failed to demonstrate that the identifications were independently reliable. See State 12 v. Classen, 285 Or 221, 232, 590 P2d 1198 (1979) (setting forth the test for determining 13 the admissibility of pretrial identifications). Accordingly, we reverse. 14 We are bound by the trial court's findings of historical fact where there is 15 evidence in the record to support them. State v. Najibi, 150 Or App 194, 198, 945 P2d 16 1093 (1997), rev den, 326 Or 464 (1998). However, we are not bound by its legal 17 conclusions drawn from those facts. Id.; State v. Ray, 157 Or App 601, 604, 971 P2d 490 18 (1998). In making that legal determination, we limit our review to the evidence before 19 the court at the time that it decided the motion.1 Najibi, 150 Or App at 199 n 4. On 1 At trial, several significant facts were revealed that supplemented or contradicted the testimony at the pretrial hearing. Although the parties have cited to some of those facts, we do not consider them in reaching our decision. 1 1 December 19, 2006, two masked men, one armed with a handgun, entered the back door 2 of the Willamina Pharmacy shortly after closing time. Two pharmacists, Kotaich and 3 Bowman, were present. The intruders forced the pharmacists into a back office and 4 bound their hands with zip ties. The intruders then demanded certain narcotics, which 5 they stole. Before leaving, they also stole some cash. The robbery lasted about eight 6 minutes. 7 Kotaich was able to give a rough physical description of the intruders to the 8 police. He reported that one of the perpetrators was about 5'6'', had a "heavier build," and 9 was dressed in faded blue jeans and a plain black sweatshirt. Kotaich reported that the 10 other perpetrator, who was armed and did all the talking during the robbery, was 5'8'' or 11 5'9'', weighed about 180 pounds, and was wearing darker clothing. Kotaich was unable 12 to give any further description of the perpetrators' appearance because they were wearing 13 makeshift masks--knit wool "beanies" pulled down over their faces and necks with only 14 eyeholes cut out. Kotaich did not get a good look at the taller individual. Kotaich did not 15 think that either perpetrator was a customer of the pharmacy because he did not recognize 16 the taller man's voice. However, Kotaich reported that "the bigger guy had a very distinct 17 voice that was unusual and a higher pitch" and opined that he would "remember that 18 voice forever." 19 On February 7, 2007, Detective Steele of the Yamhill County Sheriff's 20 Office contacted Kotaich to make a voice identification.2 Steele used a recording of 2 Steele also asked Bowman to make a voice identification, but Bowman could not 2 1 defendant being interviewed by police about robberies in a different county. Steele 2 testified that he had selected a "benign" portion of the recording to play for Kotaich, but 3 he could not recall what portion of the recording he had played or what was being said on 4 the recording. He made no attempt to put together other voice exemplars to play for 5 Kotaich. However, before playing the tape, Steele cautioned Kotaich that he "may or 6 may not recognize this voice, and the fact that [Steele] was playing [it] for him he should 7 not read anything into." According to Steele, after just a few seconds of listening to the 8 recording, Kotaich said that he was "certain" that the voice on the recording was that of 9 the taller perpetrator. 10 Sometime after the robbery, Steele had learned that another witness--Hoyer, 11 a customer of the pharmacy--had seen someone outside the store about an hour before the 12 robbery. Steele did not obtain a description of the individual from Hoyer before meeting 13 with her. Instead, on February 10, he brought five black and white photographs to 14 Hoyer's home. At least three of the photographs were of suspects, including defendant. 15 Steele made no attempt to prepare a photo array of similar-looking individuals: four of 16 the individuals were apparently Caucasian and one was apparently Hispanic; only one 17 individual (the Hispanic man) displayed visible facial hair; one individual had short blond 18 hair, one had short brown hair, and three had dark brown or black hair of widely varying 19 lengths; and the individuals' facial structures differed.3 Before showing the photographs identify the voice. 3 The trial court found that none of the individuals pictured in the throwdown 3 1 to Hoyer, Steele told her, "You may recognize somebody in this photo throwdown, you 2 may not. Just because I'm showing you these photographs does not mean that the person 3 I'm interested in is here. So, look at them very carefully, and if you do choose one that 4 you say you saw, be very, very sure." 5 Steele presented the photographs to Hoyer and, after about seven seconds, 6 she pointed to defendant's picture (the Hispanic man with facial hair) and said, "He 7 resembled this one." Steele then asked her for a description of the clothing of the man 8 she saw outside the pharmacy. Hoyer indicated that the man was wearing a dark-colored 9 hooded sweatshirt and a dark-colored stocking cap. She had never seen him before the 10 11 day of the robbery. Defendant moved before trial to suppress both the photographic and voice 12 identifications on the ground that they had been procured using suggestive procedures 13 and were therefore inadmissible. At the pretrial hearing on defendant's motion, Steele 14 was the only person to testify. In addition to the facts recounted above, Steele testified 15 about the procedures normally used in pretrial identifications. He explained that the 16 normal procedure for a photo throwdown involves assembling several photographs of appeared to be "Hispanic in nature." Having reviewed the pictures ourselves, we reject that finding as unsupported by the record. Although we recognize that a certain amount of subjectivity is involved in identifying a person's ethnicity, one of the individuals in the photographs--defendant--appears quite clearly to be Hispanic. The other individuals appear to be Caucasian, although one of them could at least arguably be Hispanic. On this point, we also note that Steele testified that defendant had a "medium" skin tone and that the other individuals in the photographs had a light skin tone; Steele later described defendant as being a "fair-skinned Hispanic" man. In any event, none of the pictured individuals bear significant similarities to each other. 4 1 "like individuals" and showing those to the witness. He admitted that there were no 2 pressing circumstances that prevented him from assembling a traditional photo 3 throwdown in this case. Steele also explained that he was not aware of any protocol for 4 voice identifications and admitted that there was no reason why he could not have 5 provided more than one voice exemplar to the witness in this case. 6 In addition, defendant read a statement at the hearing in order to provide a 7 voice exemplar. Steele testified, and the trial court found, that defendant did not have a 8 high-pitched voice.4 Nonetheless, the trial court determined that the voice identification 9 had not been obtained using "impermissibly suggestive" procedures and that, in any 10 event, the circumstances suggested the identification was reliable. The court also 11 concluded that the photographic throwdown was not suggestive. Consequently, it denied 12 defendant's motion to suppress. At trial, both witnesses recounted their pretrial 13 identification of defendant, and defendant was ultimately convicted. 14 On appeal, defendant renews his argument that both identifications were 15 the product of suggestive procedures and, therefore, should be excluded under the 16 principles announced in Classen.5 With regard to the voice identification, defendant 4 The trial court also listened to a portion of the recording of defendant. 5 Classen announced, as a matter of state evidence law, that pretrial identifications must bear a threshold level of reliability in order to be admissible. 285 Or at 226, 232; State v. Johanesen, 319 Or 128, 130, 133-34, 873 P2d 1065 (1994). That rule is derived from, but independent of, the federal due process guarantee. See Johanesen, 319 Or at 133-34 (so noting); cf. Perry v. New Hampshire, ___ US ___, 132 S Ct 716, ___ L Ed 2d ___ (2012) (discussing the federal standard). Here, defendant contends that the identifications should have been suppressed both under Classen and as a matter of federal 5 1 argues that it was suggestive to play a "single recording * * * of a single voice" for the 2 witness, particularly where the recording was an interrogation by police about robberies 3 in another county. Defendant further argues that the state did not meet its burden to 4 establish that the identification was reliable notwithstanding the suggestive procedure. 5 With regard to the photo throwdown, defendant points out that the detective, by his own 6 admission, deviated from the normal procedure by failing to select photographs of 7 similar-looking individuals. That failure, according to defendant, improperly led the 8 witness to identify defendant. Furthermore, defendant argues, the circumstances 9 surrounding the identification do not support a conclusion that it was reliable despite the 10 suggestive procedures. 11 The state responds that the detective's warnings prior to both identifications 12 were sufficient to inoculate the identifications against any suggestive effects of the police 13 procedures. As to the voice identification, the state also argues that the procedure was 14 not suggestive merely because a single voice was played or because the subject matter of 15 the recording was a police interrogation. Moreover, according to the state, using multiple 16 voice exemplars would have increased the likelihood of suggestiveness. In addition, the 17 state contends, the content of the recording was not influential because the detective used 18 a "benign" portion of the police interview. In any event, the state argues that the 19 identification bore sufficient indicia of reliability to be admissible. As to the photo due process. Because we decide this case under the test articulated in Classen, we do not reach the federal due process question. 6 1 throwdown, the state argues only that the procedure was not suggestive; it concedes that, 2 if the procedure was suggestive, the identification was not reliable. Alternatively, it 3 argues that any error with regard to the photo identification was harmless. For the 4 following reasons, we conclude that the identifications should have been suppressed. 5 Under Classen, the admissibility of challenged identification evidence 6 7 8 9 10 11 12 13 hinges on a two-step inquiry: "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 or that other aspects of the identification at the time it was made substantially exclude the risk that it resulted from the suggestive procedure." 14 285 Or at 232 (footnote and citation omitted). Factors relevant to the second 15 determination 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 "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. * * * Obviously other facts may also be important, such as the age and sensory acuity of the witness, 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. 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." Id. at 232-33 (footnote and citations omitted). We begin with the voice identification and conclude that the process used 7 1 by the detective was suggestive.6 As noted, Steele contacted Kotaich to make a voice 2 identification, cautioned him that he should not feel compelled to make an identification, 3 and then played "benign" portions of a recording taken from a police interrogation of 4 defendant regarding robberies in another county. Playing a recording of a single voice 5 for a witness, much like displaying a single photograph, is a nearly quintessential 6 example of a suggestive procedure. See, e.g., State v. James, 240 Or App 324, 327, 245 7 P3d 705, rev allowed, 350 Or 532 (2011) ("Clearly, under the test set forth in Classen, a 8 procedure in which a witness is shown only a pair of joint suspects and asked to identify 9 them is an unduly suggestive procedure."); State v. Rector/Tremaine, 82 Or App 466, 10 477, 729 P2d 1 (1986), rev den, 302 Or 614 (1987) ("An identification is unduly 11 suggestive if it unfairly singles out or points to a defendant as the suspect to be identified 12 for a known crime or for a known reason."); Sanchell v. Parratt, 530 F2d 286, 294 (8th 13 Cir 1976) ("[S]howing only a single suspect to the witness is the most suggestive and, 14 therefore, the most objectionable method of pretrial identification." (Citation and internal 15 quotation marks omitted.)). That process creates an unavoidable inference that the 16 individual in the recording is a focal suspect of the police, and may lead the witness to 17 feel that he or she should identify the individual's voice. In that context, a preemptive 18 warning to the witness does little to diminish the powerful inference that the 6 We have previously applied the Classen test to voice identifications in the same manner as photographic throwdowns or lineups. State v. Lee, 56 Or App 147, 152 n 7, 641 P2d 589 (1982); State v. Davie, 56 Or App 507, 516 n 4, 642 P2d 680, rev den, 293 Or 146 (1982). 8 1 circumstances otherwise suggest. See State v. Lee, 56 Or App 147, 153, 641 P2d 589 2 (1982) ("[T]he fact that the witness * * * was not told that the suspect was among the 3 samples is not determinative on the issue of suggestiveness."). We conclude that the 4 voice identification procedure in this case was suggestive. See id. at 152-53 (voice 5 identification procedure was suggestive where, although six recordings were played for 6 the witnesses, the recording of the defendant's voice was unscripted and contained 7 background noise and therefore sounded more natural than the others); State v. Davie, 56 8 Or App 507, 513, 642 P2d 680, rev den, 293 Or 146 (1982) (in-person voice 9 identification of single suspect was suggestive). 10 The question remains whether the state demonstrated that the voice 11 identification was reliable notwithstanding the suggestive procedure. Here, the witness 12 was exposed to the perpetrator's voice on a single occasion for eight minutes while the 13 witness was under great stress. Cf. Ray, 157 Or App at 605 (identification was reliable 14 where, among other things, the witness had encountered the defendant several times over 15 a period of three years); Lee, 56 Or App at 153 (identification was reliable where the 16 witness had "at least two face-to-face encounters with the suspicious man" and, during 17 the second encounter, "took special note of his appearance"). Nonetheless, the witness 18 expressed confidence at the time of the crime that he would be able to remember the 19 perpetrator's voice, and he expressed certainty in his identification of defendant's voice at 20 the time the recording was played for him.7 The certainty of the witness's identification, 7 We recognize that the old "notion that a witness's certainty in his or her 9 1 however, is undercut somewhat by the fact that the witness's original description--that 2 defendant's voice was "distinct" and "unusual" and had a "higher pitch"--was inaccurate, 3 that is, it ultimately did not match defendant. Cf. Najibi, 150 Or App at 199 4 (identification was reliable where, among other things, the witness gave a detailed 5 description of perpetrator's features, "all of which were consistent with [the] defendant"). 6 Finally, the identification occurred nearly two months after the crime. Cf. James, 240 Or 7 App at 328 (where identification was made five hours after the crime, "[t]hat relatively 8 short amount of time does not weigh significantly against the admissibility of the 9 identifications"); Najibi, 150 Or App at 200 (noting that witnesses' "memories may not 10 have been fresh" where one month had passed between the crime and the identification, 11 but also noting that "we have upheld identifications that occurred much longer after the 12 crime"). 13 Several of those facts are, in effect, neutral--that is, they do not add 14 significantly to the reliability of the identification or could be argued either in favor of or 15 against admissibility. The fact that the witness was in the presence of the perpetrator for 16 eight minutes, although potentially significant in the context of a visual identification, is 17 less persuasive in the context of an auditory identification. The state did not introduce 18 evidence at the hearing to show how much talking the perpetrator did, the manner in 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. Lawson, 239 Or App 363, 385, 244 P3d 860 (2010), rev allowed, 350 Or 532 (2011) (citation omitted). Nonetheless, our cases have continued to consider this factor in weighing the reliability of identification evidence. 10 1 which the perpetrator was speaking, or how carefully the witness paid attention to his 2 voice.8 Nor was there any evidence about the witness's sensory acuity to voices. 3 Similarly, the stress of a robbery at gunpoint could be cited as a factor both 4 in support of and against the reliability of the identification. See State v. Lawson, 239 Or 5 App 363, 381, 244 P3d 860 (2010), rev allowed, 350 Or 532 (2011) (so noting). 6 Likewise, there is no bright-line rule regarding the lapse of time between the crime and 7 the identification. Nonetheless, after two months' time, the witness's memory may not 8 have been fresh. 9 What we are left with is the witness's certitude, on the one hand, and his 10 inaccurate description, on the other. Under those circumstances, there is little evidence 11 that "negate[s] any substantial risk that th[e] identification was stimulated by the 12 suggestive procedure." Classen, 285 Or at 236. In other words, the state did not carry its 13 burden to show that the identification was independently reliable. Thus, that 14 identification should have been suppressed. 15 We also conclude that the photographic throwdown was suggestive. The 16 officer made no attempt to put together photos of similar-looking individuals, and, 17 indeed, the individuals pictured in the throwdown bore little resemblance to each other. 18 Defendant was the only individual who had short dark hair, had any discernible facial 19 hair, and appeared to be Hispanic. "For a display to be impermissibly suggestive it must 8 Steele testified only that the relevant perpetrator made a few commands during the robbery. 11 1 somehow lead the witness to identify a person on some basis other than the witness'[s] 2 memory. A display could be impermissibly suggestive if, of all the persons shown, only 3 one or two persons looked at all like the defendant." State v. Maher, 72 Or App 543, 546, 4 696 P2d 573, rev den, 299 Or 314 (1985). Here, if the witness was looking for a 5 Hispanic man with facial hair, she had only defendant's picture from which to choose. 6 That throwdown was suggestive. See, e.g., Classen, 285 Or at 236 (photo throwdown 7 was suggestive, in part because "only one of the pictures showed a man with facial hair 8 beyond a mustache"); Lee, 56 Or App at 152 (photo throwdown was suggestive where the 9 "defendant's was the only picture of a white man with short, dark curly hair"); cf. State v. 10 Mackey, 86 Or App 691, 695, 740 P2d 231, rev den, 304 Or 279 (1987) (photo 11 throwdown was not suggestive where it showed "six white men of similar age with 12 substantially similar hair color, style and length, facial structure and facial hair, wearing 13 similar clothing"). 14 As noted, the state does not contend that the photographic identification 15 was reliable despite the suggestive procedure. The relevant facts are these: the witness 16 saw the individual outside the pharmacy, apparently in passing, and had no reason to pay 17 particular attention to his appearance; the witness had never seen the individual before 18 the day of the robbery; the witness did not provide any description, let alone a detailed 19 one, of the individual before the photo throwdown; almost two months had passed 20 between the original observation and the photo identification; and the witness did not 21 express certainty in her description, saying only that defendant "resembled" the 12 1 2 individual she had seen. In light of those facts, the state's concession is well taken. Finally, the state argues that the failure to suppress the photographic 3 identification was harmless in light of the witness's equivocal trial testimony and the 4 other evidence introduced at trial. However, the state advances no argument that the 5 failure to suppress both out-of-court identifications was harmless. An error is harmless 6 where there is little likelihood that it affected the verdict. State v. Davis, 336 Or 19, 32, 7 77 P3d 1111 (2003). Having reviewed the record in this case, we readily conclude that 8 the errors in admitting the identification evidence were not harmless. See Lawson, 239 9 Or App at 385 (noting that "eyewitness testimony is often believable and can wield 10 considerable influence over jury decisions"). Consequently, the case must be remanded 11 for a new trial. 12 Reversed and remanded. 13
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