Opinion
No. 76-355 C, CA 8414
Argued November 18, affirmed December 19, 1977, reconsideration denied February 23, petition for review denied April 25, 1978
Appeal from Circuit Court, Klamath County.
Ted Abram, Judge.
James P. Spindor, Klamath Falls, argued the cause and filed the brief for appellant.
Jan P. Londahl, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Al J. Laue, Solicitor General, Salem.
Before Schwab, Chief Judge, and Tanzer and Johnson, Judges.
PER CURIAM.
Affirmed.
Defendant appeals his conviction for rape in the first degree, ORS 163.375. Defendant's principal contention is that there was insufficient evidence to support the trial court's findings that the victim's in-court identification of defendant was independent of and not tainted by her pre-trial identification of him in a lineup. The trial court had previously ruled at the pretrial omnibus hearing that the lineup was impermissibly suggestive and evidence thereof was inadmissible. For the reasons stated in State v. Classen, 31 Or. App. 683, 571 P.2d 527 (1977), we conclude the trial court's ruling in the omnibus hearing was erroneous and there was no need for a finding that the in-court identification was independent of the lineup.
Defendant also assigns as error the trial court's action in excluding certain testimony for failure of defense counsel to disclose written memoranda relating to it as required by the discovery statutes. ORS 135.835(1). While the trial court may have abused its discretion under the discovery statute, see State v. King, 30 Or. App. 223, 566 P.2d 1204 (1977), the testimony was properly excluded because it was irrelevant.
Defendant's other assignments of error do not warrant discussion.
Affirmed.