| Or. | Apr 2, 1969
Lead Opinion
. The defendant appeals from his conviction of armed assault and robbery and the resulting sentence of imprisonment for seven years in the Oregon State Correctional Institution.
Defendant challenges the sufficiency of the evidence to support his conviction and also contends that his Fourteenth Amendment right to due process was denied by the picture identification and lineup procedures used by the police, which, according to defendant, tainted the in-court identification testimony by eyeAvitnesses.
A cab driver picked up two men at a Portland tavern who directed him to drive to a dark street in the Ardenwald District where they asked him to stop. “While still seated in the back seat the two passengers robbed the cab driver, who Avas still seated in the front seat', by. holding against the back of his neck an object Avhich they told 1dm was a razor blade. At the same time the driver felt a sharp point in his back. The driver was told to look straight ahead and to hand back his wallet, which he did. He did not see the razor blade or the “sharp point,” which he felt in his back. Later he was tied up Avith his oato belt and the cord
The sufficiency of the evidence is challenged because there is no evidence that defendant was armed with a knife or that a knife was used in the robbery. All persons concerned in the commission of a felony are principals, ORS 161.220, and it was not necessary to prove that defendant himself used the knife. There was sufficient proof that a knife was used by one of the two men.
The other assignments of error are couched in sweeping terms embracing all the lineup and picture identification procedures used by the police. Since these alleged errors were not raised in the court below, we decline to consider them on appeal.
The judgment is affirmed.
Rehearing
ON PETITION FOR REHEARING
In a petition for rehearing defendant urges that we apply retroactively the rules announced in United States v. Wade, 388 U.S. 218" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/united-states-v-wade-107486?utm_source=webapp" opinion_id="107486">388 US 218, 87 S Ct 1926, 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 U.S. 263" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/gilbert-v-california-107487?utm_source=webapp" opinion_id="107487">388 US 263, 87 S Ct 1951, 18 L ed 2d 1178 (1967). This we decline to do.
We applied Escobedo v. Illinois, 378 U.S. 478" court="SCOTUS" date_filed="1964-06-22" href="https://app.midpage.ai/document/escobedo-v-illinois-106883?utm_source=webapp" opinion_id="106883">378 US 478, 84 S Ct 1758, 12 L ed 2d 977 (1964), retroactively in accordance with the formula established in Linkletter v. Walker, 381 U.S. 618" court="SCOTUS" date_filed="1965-06-07" href="https://app.midpage.ai/document/linkletter-v-walker-107084?utm_source=webapp" opinion_id="107084">381 US 618, 85 S Ct 1731, 14 L ed 2d 601 (1965) (see State v. Clifton, 240 Or. 378" court="Or." date_filed="1965-05-12" href="https://app.midpage.ai/document/state-v-clifton-1297675?utm_source=webapp" opinion_id="1297675">240 Or 378, 401 P2d 697 (1965) and Guse v. Gladden, 243 Or. 406" court="Or." date_filed="1966-05-11" href="https://app.midpage.ai/document/guse-v-gladden-1189855?utm_source=webapp" opinion_id="1189855">243 Or 406, 414 P2d 317 (1966) ). We have not changed the rule with regard to the retroactivity of Escobedo.
We have applied Miranda v. Arizona, 384 U.S. 436" court="SCOTUS" date_filed="1966-06-13" href="https://app.midpage.ai/document/miranda-v-arizona-107252?utm_source=webapp" opinion_id="107252">384 US 436, 86 S Ct 1602, 16 L ed 2d 694, 10 ALR3d 974 (1966) retroactively in accordance with the formula laid down in Johnson v. New Jersey, 384 U.S. 719" court="SCOTUS" date_filed="1966-06-20" href="https://app.midpage.ai/document/johnson-v-new-jersey-107260?utm_source=webapp" opinion_id="107260">384 US 719, 86 S Ct 1772, 16 L ed 2d 882 (1966). See State v. Dills; Stice, 244
With regard to United States v. Wade and Gilbert v. California and related cases, we adopt the rule of prospective application as stated in Stovall v. Denno, 388 U.S. 293" court="SCOTUS" date_filed="1967-06-12" href="https://app.midpage.ai/document/stovall-v-denno-107488?utm_source=webapp" opinion_id="107488">388 US 293, 87 S Ct 1967, 18 L ed 2d 1199, 1205 (1967).
We find nothing in the evidence in this case with regard to the picture identification and line-up procedures to suggest a denial of due process. Simmons v. United States, 390 US 377, 88 S Ct 967, 19 L ed 2d 1247 (1968). The retroactive application of United States v. Wade would not change the result in this case. The petition for rehearing is denied.