289 P.3d 949
Ariz. Ct. App.2012Background
- Series of three Tucson convenience-store robberies in summer 2010; clerks could not identify Nottingham from non-suggestive photo lineups near the offenses; surveillance videos reviewed by clerks; at first trial the clerks identified Nottingham in court despite pretrial non-identifications; retrial resulted in convictions for robbery and two armed robberies; trial court denied Dessureault-based challenge and refused a cautionary identification instruction; on appeal the issue centers on whether in-court identifications were permissible and whether a cautionary instruction was required; Supreme Court Perry v. New Hampshire changed governing framework for reliability and jury instruction in in-court identifications; this court reverses and remands for new trial due to failure to give RAJI 39 instruction
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was a Dessureault hearing required before the second trial? | Nottingham argues pretrial identifications tainted in-court identifications. | State contends Perry forecloses pretrial Dessureault hearing requirement for in-court identifications. | No Dessureault hearing required under Perry |
| Were the in-court identifications properly admitted without a Dessureault-type inquiry? | Identifications tainted by suggestive pretrial and trial circumstances. | Identifications were conducted under neutral court supervision; Perry limits pretrial screening. | In-court identifications admissible under Perry, but require cautionary instruction under Perry framework |
| Should a cautionary RAJI 39 instruction have been given to the jury? | Yes; evidence suggested reliability issues; instruction required. | No; Perry does not mandate a pretrial hearing, and instruction not necessary when reliability tested at trial. | Yes; error in not giving RAJI 39 instruction; not harmless given strength of identification evidence and prior mistrial |
Key Cases Cited
- Dessureault v. State, 104 Ariz. 380 (Ariz. 1969) (pretrial identification procedures and Dessureault framework for challenges)
- State v. Leyvas, 221 Ariz. 181 (Ariz. 2009) (limits on in-court identification review; not necessarily dispositive)
- Perry v. New Hampshire, 132 S. Ct. 716 (U.S. 2012) (limits pretrial screening; reliability tested at trial with safeguards; emphasizes warnings to juries)
- Strickland v. State, 113 Ariz. 445 (Ariz. 1976) (unduly suggestive in-court identifications leading to new trial (pre-Perry))
- State v. Cañez, 202 Ariz. 133 (Ariz. 2002) (recognizes inherent suggestiveness of single-person identifications)
- Osorio v. State, 187 Ariz. 579 (Ariz. 1996) (identity instruction considerations in identification issues)
- Chapple v. State, 135 Ariz. 281 (Ariz. 1983) (acknowledges dangers of eyewitness identification)
- Abdi v. State, 226 Ariz. 361 (Ariz. 2011) (reversible error where core issue not overwhelming)