Testimony makes retrial possible in 2009 murder case

By Greg Bolt / The (Eugene) Register-Guard

Published Jan 10, 2014 at 12:06AM

A questionable eyewitness identification has brought a 2009 murder case back to a Lane County courtroom, where a judge is expected to decide soon whether to grant a new trial.

A judge heard arguments Wednesday in the case of Michael Wayne Wesley, who was convicted of murder in the 2008 drive-by killing of Wendy Jo Whitaker in Springfield. Wesley appealed the conviction, and a higher court reversed it earlier this year and sent the case back for an additional hearing and possible new trial.

The decision by the Oregon Court of Appeals forces a second look at a notorious crime in which Whitaker died in a hail of gunfire aimed at her boyfriend, an alleged methamphetamine dealer named Jesse Ward Anderson.

The gunmen, reportedly angry about an earlier confrontation over a meth deal, opened fire on Anderson from a moving car but missed him and hit Whitaker before speeding off.

Wesley, 32, is serving a 30-year sentence for his role in the incident. He appeared in Lane County Circuit Court in a wheelchair, paralyzed from the chest down, after being shot by police during his capture the day after Whitaker was killed.

At issue is Anderson’s identification of Wesley as one of the two shooters. The appeals court found that Springfield police may have tainted the identification by showing Anderson a picture of Wesley — and only Wesley — during interviews after the shooting.

Now, Lane County Circuit Judge Lauren Holland will have to decide whether Anderson’s testimony should have been allowed. She heard arguments on the issue during Wednesday’s short hearing and will issue a ruling later.

If she finds that the testimony should not have been allowed, Wesley probably will get a new trial. If that happens, the estimated two-week trial is scheduled to start May 6.

During Wesley’s 2009 trial, Anderson identified him as one of two men who opened fire on him and Whitaker as they stood outside their car early on the morning of Sept. 3, 2008. The other gunman, Ronald Smith, confessed to his role in the shooting and testified against Wesley. He is serving a 25-year sentence.

Smith admitted that he fired the shot that killed Whitaker, but prosecutors argued that as an accomplice, Wesley shared blame. A jury found him guilty of murder. Wesley maintained during the trial that he was not with Smith at the time of the shooting.

Wesley appealed his conviction, arguing that police showed Anderson only one picture — Wesley’s — when they interviewed him later on the day of the shooting and still were trying to identify the second gunman. Anderson earlier had identified one of the men as “Ronnie” but at that time told police he didn’t know the other shooter.

Anderson later gave conflicting stories to investigators, at one time denying that he could identify either gunman. But he ultimately told police he had recognized Smith during the shooting and recognized the man in the police photograph as the other gunman.

During Wesley’s trial, his attorney sought to block Anderson’s testimony, saying that because Wesley’s picture was the only one Anderson was shown, his later identification was tainted. Holland rejected that argument, and Wesley’s attorneys raised it again on appeal.

The appeals court agreed with the defense, citing a 2012 Oregon Supreme Court ruling that tightened the standards for eyewitness testimony. The three-judge panel found that prosecutors hadn’t shown that Anderson’s recognition of Wesley as one of the gunmen wasn’t influenced by the suggestive way police obtained the identification.

In Wednesday’s hearing, Deputy Lane County District Attorney Robert Lane argued that Anderson simply lied when he initially said he didn’t recognize Wesley’s picture. He also said other evidence from cellphone records and additional witnesses show that Wesley was with Smith at or near the time of the shooting, backing up Anderson’s testimony.