State v. Allen

“In Lawson/James, the court held that the threshold inquiry from Classen—whether there had been suggestive police procedures—was unnecessary as a preliminary and independent inquiry: ‘There is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between suggestiveness and other sources of unreliability.’” State v. Wesley, 254 Or App 697, 711, 295 P3d 1147, rev den, 354 Or 62 (2013)(quoting  Lawson/James, 352 Or at 747).

Defendant appealed her conviction of second-degree assault and unlawful use of a weapon (UUW). Defendant assigned error to the trial court for several reasons, among those were that it erred in admitting excited utterances of a non-testifying victim because his unavailability had not been established and in admitting the eyewitness IDs of the defendant by two witnesses. The State argued that the uniform instructions were a sufficient substitute for Defendant’s proposed jury instruction and that the jury instructions were not necessary because the factors were “common sense.” “In Lawson/James, the Court held that the threshold inquiry from Classen—whether there had been suggestive police procedures—was unnecessary as a preliminary and independent inquiry: ‘there is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between suggestiveness and other sources of unreliability.’” State v. Wesley, 254 Or App 697, 711, 295 P3d 1147, rev den, 354 Or 62 (2013)(quoting  Lawson/James, 352 Or at 747).  The Court ruled that the instructional error was harmless beyond a reasonable doubt and therefore the Defendant is not entitled to reversal of the convictions based on unanimous verdicts. However, the defendant is entitled to reversal for her convictions on Counts 4 and 6 which were based on nonunanimous verdicts. Convictions on Counts 4 and 6 reversed and remanded; remanded for resentencing; otherwise affirmed.