State v. McBain , 24 Or. App. 737 ( 1976 )

SCHWAB, C. J.

Upon trial by jury defendant was convicted of rape in the first degree, ORS 163.375. We reverse and remand on the ground that the trial judge permitted submission to the jury of identification evidence based upon an impermissibly suggestive procedure. Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L Ed 2d 1247 (1968); United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967).¹

The only direct identification was made by the prosecuting witness who testified that she had been raped by an unknown assailant in July of 1974, which was some ten months prior to commencement of trial. When she saw the defendant in the courtroom all she could say was that he looked somewhat like the man who had raped her, but that for various reasons she could not be certain. She testified, however, that in August 1974 the police had shown her nine photographs and that one of these photographs positively was a picture of her assailant. The photograph was of the defendant. It was the only photograph of the nine showing a darkly bearded, heavy-set man (although not the only bearded man). She had described her assailant to the police as having these characteristics immediately after the rape occurred.

It is true that there was circumstantial evidence tending to connect the defendant with the incident and that the prosecutrix did make a tentative identification of the defendant in the courtroom. However, the only positive identification came through the photographic display and it was conducted in such a manner as to be impermissibly suggestive. Under these circumstances we cannot say that the admission of the photograph and testimony concerning it constituted harmless error.

Reversed and remanded for a new trial.

1 Defendant’s other assignments of error do not warrant discussion.