Justices apply new standards arising from 2012 decision

The Oregon Supreme Court upheld a murder conviction despite a challenge to eyewitness testimony that the defendant argued should have been excluded from his 2009 trial.

Thursday’s decision was the first time the high court applied new legal standards arising from its 2012 decision on when eyewitness testimony is admissible in trials.

Jerrin Lavazie Hickman, now 36, remains at the Oregon State Penitentiary, where he is serving a life sentence for a murder committed on New Year’s Eve 2007 at a party in Northeast Portland. The minimum term is 25 years.

The justices held that Judge Michael Marcus properly admitted the testimony of one eyewitness during Hickman’s trial in Multnomah County Circuit Court. As for the testimony of the other eyewitness in question, its admission into the trial amounted to “harmless error,” given the other evidence in the case against Hickman.

There was “no evidence of any suggestive pre-identification procedures” by police to lead the witnesses to their conclusions in court, Justice David Brewer wrote for the high court.

“We cannot hold that the in-court identification procedure complained of was so impermissibly suggestive as to violate defendant’s due-process rights,” he added.

In 2012, the Supreme Court ruled that the state must establish facts to justify the admission of eyewitness identification when a defendant is prepared to challenge it, especially when police obtain it based on "suggestive" procedures such as showing photographs to witnesses or victims.

The court did not throw out tests it laid out in 1979, two years before lawmakers approved an evidence code. But it also did not simply uphold current practices, as the U.S. Supreme Court did earlier in 2012.

Among the new facts, then-Justice Paul De Muniz wrote back in 2012, are the eyewitness's personal knowledge of matters to which the witness will testify, and proof that identification is "rationally based" on the witness's first-hand perceptions and helpful to the "trier of fact," usually a jury.

The Supreme Court decision reversed the Court of Appeals, which ruled in March 2013 that the eyewitness testimony should not have been admitted.

The case stems back to New Year’s Eve 2007, when at least five other eyewitnesses said that Hickman used a handgun to shoot 25-year-old Christopher Monette four times at a party in the 8400 block of Northeast Thompson Street in Portland. Both were African American men.

Hickman fled, but Portland police recovered the handgun and a ski mask Hickman wore during the shooting and later tests turned up his DNA.

Hickman was arrested 11 months later in Keizer by a U.S. marshals’ task force.

The case, however, turned on a challenge by Hickman to courtroom testimony by two eyewitnesses identified in the Supreme Court decision only as “D” and “N.” Both were white women, then ages 19 and 18, who were in the back seat of a car that had arrived at the party just before the shooting.

Neither “D” nor “N” were asked by prosecutors before the trial to identify the shooter, and prosecutors did not tell Hickman’s lawyers they intended to ask either woman to identify the shooter in court during the trial.

But during a recess prompted by a breakdown in recording equipment, “D” left the witness stand and walked past Hickman into the hallway. “D” then told the prosecutor: “Oh, my God, that’s him, that’s him.”

When the trial resumed, “D” testified that she had seen two African-American men arguing, the shooter and the victim. She said she did not see the actual shooting, but minutes later, she saw one of the two men fire several gunshots into the air, an account confirmed by other witnesses.

Eyewitness “N” said that while she did not give specific information about the shooter during her initial interview with police, she did so to prosecutors about two weeks before the trial. She said she got a good look at Hickman.

Despite objections from defense lawyers based on due-process guarantees under the 14th Amendment to the U.S. Constitution, the trial judge allowed each witness to identify Hickman as the shooter. Hickman’s lawyers called an expert to testify that such eyewitness identification, nearly two years after the incident, was inherently unreliable.

Brewer, writing for the high court, said defense lawyers did invoke their right to cross-examine the witnesses and call experts to raise questions about the reliability of their testimony.

Hickman was convicted on Dec. 31, 2009, two years to the day after the murder. He has been in state prison since January 2010.

The court's original 2012 decision combined two cases, one involving a conviction based partly on a review of photographs by the victim. The other conviction was based on an identification by clerks at the store where the robbery took place. The high court ordered a new trial in the first case, but upheld the conviction in the second case.

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Adds background about 2012 standards added by the Oregon Supreme Court to guide courts about admissibility of eyewitness identification. Fixes date of U.S. Supreme Court decision on a similar issue.

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