Case Information
*1 IN THE
A RIZONA C OURT OF A PPEALS
D IVISION T WO T HE S TATE OF A RIZONA , Appellee ,
v. S ERGIO A RTURO R OJO -V ALENZUELA ,
Appellant . No. 2 CA-CR 2013-0279 Filed September 23, 2014 Appeal from the Superior Court in Pima County
No. CR20123276001
The Honorable Richard D. Nichols, Judge The Honorable Scott Rash, Judge AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel
By David A. Simpson, Assistant Attorney General, Phoenix Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
OPINION
Judge Espinosa authored the opinion of the Court, in which Presiding Judge Miller and Chief Judge Eckerstrom concurred.
E S P I N O S A, Judge: After being convicted of attempted first-degree murder
and aggravated assault with a deadly weapon, Sergio Rojo-Valenzuela (Valenzuela) was sentenced to two concurrent prison terms of eleven years each. On appeal, he seeks a new trial or new Dessureault hearing, arguing the trial court erred by admitting evidence pertaining to his pretrial identification by a police officer and by inaccurately instructing the jury on attempted first-degree murder. We affirm.
Factual and Procedural Background One night in August 2012, police responded to an
emergency call from a car wash where Valenzuela and two other men had been seen displaying guns and acting “a little crazy.” As Tucson Police Officer Winans arrived at the scene, Valenzuela and the two men sped away in a dark-colored sport utility vehicle and several police cars pursued. Following a high-speed chase through a residential neighborhood, the SUV came to a stop and the occupants fled on foot. Officer Wolfe continued to chase Valenzuela in his patrol car, but was forced to stop when Valenzuela scaled a wall surrounding a residence. As Wolfe started to get out of his vehicle, shots were fired striking the hood of the car and the front windshield just above the steering wheel. Although Wolfe took note of the shooter’s build and clothing, he did not see his face, and none of the other officers witnessed the shooting. However, a video camera mounted on Wolfe’s dashboard recorded the entire event, including the moment when the gunman fired five rounds at Wolfe from behind the wall.
¶3 Police immediately set up a “containment” area that consisted of an inner and outer “quadrant” and began patrolling the neighborhood in search of the shooter. Valenzuela was discovered hiding under a van parked outside a residence within the inner quadrant. Another suspect was detained several blocks away in the outer quadrant. After arrests were made, Officers Winans and Wolfe participated in a series of show-ups with Valenzuela and the second suspect. Winans was unable to positively identify either individual, but Wolfe identified Valenzuela as the shooter based on his clothing, shoes, and physical stature. Before trial, Valenzuela moved to suppress any pretrial
and in-court identifications and requested a Dessureault hearing “to protect his due process rights to a fair identification procedure.” The trial court held a hearing but ultimately denied the motion to suppress, finding that Officer Wolfe’s identification was not a “typical identification that would be the subject of a suppression motion.” The court made no findings concerning the suggestiveness or reliability of the identification, concluding instead that Wolfe’s “use [of] the word ‘identification’ . . . [wa]s more of a shorthand description of his reaction to seeing someone of a similar size and similar clothing.” The case proceeded to trial, and Valenzuela was found guilty by a jury and sentenced as set forth above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13-4033(A).
Discussion
Pretrial Identification Procedure Valenzuela urges us to reverse and remand for a new
trial or new
Dessureault
hearing based on the trial court’s admission
of Officer Wolfe’s pretrial identification testimony. He challenges
the court’s conclusion that Wolfe’s identification was an atypical one
requiring no evaluation under the due process clause. Had the court
engaged in the proper analysis, he argues, it would have concluded
that the show-up identification was both unduly suggestive and
unreliable and that his pretrial and in-court identifications should be
suppressed. The state concedes that Wolfe’s initial identification
was inherently suggestive and that it should have been subjected to
a due process analysis, but argues the court’s ruling may be upheld
because the suggestive identification procedure was necessary
under the circumstances and Wolfe’s identification was reliable.
[2]
¶6
We review the trial court’s ruling for a clear abuse of
discretion,
State v. Lehr
,
requires that police identification procedures be conducted “in a
manner that is fundamentally fair and secures the suspect’s right to
a fair trial.”
Lehr
,
955 (1968), our supreme court set forth the procedure to be followed when a proposed in-court identification has been challenged on grounds that it will be tainted by an unduly suggestive pretrial identification method. First, a hearing must be held “to determine from clear and convincing evidence whether [the prior identification] contained unduly suggestive circumstances.” Id. at 384, 453 P.2d at 955. If the prosecution fails to establish that the identification was not unduly suggestive, it may then attempt to prove that the proposed in-court identification is not tainted. Id. If the court finds the in-court identification admissible on that basis, upon request it must provide a cautionary jury instruction concerning the relationship between the pretrial and in-court identifications. Id. While the procedures set forth in Dessureault still
govern a defendant’s challenge to the admission of identification
evidence, the analysis has been altered slightly to incorporate
subsequent developments in constitutional law. Significantly, we
now recognize that a defendant’s due process rights will not be
violated by the admission of evidence concerning an unduly
suggestive—but nevertheless reliable—pretrial identification.
See,
e.g.
,
State v. Williams
, 144 Ariz. 433, 440, 698 P.2d 678, 684 (1985) ( well-established that “‘[t]he admission of testimony concerning a
suggestive and unnecessary identification procedure does not
violate due process so long as [it] possesses sufficient aspects of
reliability’”),
quoting Manson v. Brathwaite
,
suggestive,” will be screened for reliability under the factors
articulated by the Supreme Court in
Neil v. Biggers
, 409 U.S. 188
(1972).
See, e.g.
,
Moore
,
include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Biggers , 409 U.S. at 199-200. As the state notes, these factors are “non-exclusive,” and, at times, our analysis may be informed by other indicia of reliability or lack thereof. See State v. Fierro , 166 Ariz. 539, 546-47, 804 P.2d 72, 79-80 (1990) (relying in part on extensive cross-examination of witness); State v. Nieto , 118 Ariz. 603, 605, 578 P.2d 1032, 1034 (App. 1978) (noting Biggers factors are “not exclusive”). We agree with both parties that the trial court erred by
concluding Officer Wolfe’s identification was not subject to a
Dessureault
analysis. As the state acknowledges, “[t]he mere fact
that an identification is based on a suspect’s build and clothing—as
opposed to the suspect’s face—does not exempt the identification
from due process analysis.”
State v. Trujillo
,
most suggestive police show-ups, it follows that a reliability analysis
would rarely be required if exigency alone could justify the
admission of suggestive identifications. We are therefore reluctant
to reach such a conclusion in the absence of further guidance from
the Arizona or United States Supreme Court. In any event, the state
presented no evidence at the
Dessureault
hearing concerning the
necessity of the particular procedure, or the reasons it could not
have taken measures to make the show-up less suggestive.
Accordingly, we turn to the question of whether the
trial court’s ruling should be affirmed on the basis of reliability. Although Officer Wolfe’s opportunity to view Valenzuela was brief,
beginning just after Valenzuela fled from the Jeep and lasting only
until he scaled the wall, Wolfe was a fairly short distance away—
“twenty to thirty feet,” by his account—and the area was
illuminated by his squad car’s spotlight. The short duration of
Wolfe’s observation was more than offset by his degree of attention
at that point.
See State v. McLoughlin
, 133 Ariz. 458, 462, 652 P.2d
531, 535 (1982) (identification reliable notwithstanding short
duration of observation where witnesses “had a reason to have their
attentions riveted on [the suspect]”);
Trujillo
,
Gonzalez, who brought Officer Wolfe to the show-up, regarding Wolfe’s statement at that time “was classic hearsay” and that the trial court abused its discretion when it admitted the testimony over Valenzuela’s objection. The state responds that the detective’s testimony was admissible pursuant to Ariz. R. Evid. 801(d)(1)(C), which classifies as non-hearsay any statement of identification made by a declarant-witness who is subject to cross-examination. Valenzuela concedes in his reply that this subsection applies to “statements of identification . . . conducted in a constitutional manner,” and that the “Rule 801(d)(1)(C) hearsay exemption [applies] to [the detective’s] testimony about Officer Wolfe’s statement,” to the extent Wolfe’s identification comported with due process. We agree, and incorporating our due process analysis above, conclude that Gonzalez’s testimony regarding Wolfe’s identification was properly admitted.
Jury Instruction Finally, Valenzuela argues that the trial court’s jury
instruction on attempted
first-degree murder constituted
fundamental error. He maintains the court’s use of the term “the
crime” or “a crime” in describing the elements of attempt was
impermissibly vague because it allowed the jury to find him guilty
of attempted first-degree murder if it found that he had attempted to
commit any crime, not just first-degree murder. The state disputes
his characterization of the instruction, insisting “the crime”
referenced in the instruction can only be interpreted to mean first-
degree murder “and not some hypothetical other crime.”
We review the legal adequacy of a jury instruction
de
novo
.
State v. Martinez
,
instruction, Valenzuela has failed to establish any resulting
prejudice
. See State v. Henderson
, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d
601, 607 (2005). In evaluating the impact of an allegedly erroneous
jury instruction, we will, along with other factors, consider the
statements of counsel.
State v. Valverde
,
Valenzuela’s intent to commit first-degree murder throughout his closing:
There is no question the person that shot at [the officer] is guilty of [aggravated assault]. And the same with the attempted first degree murder. . . . [Y]ou saw where that bullet went through Officer Wolfe’s car. . . . Those aren’t lucky shots. That is someone [who] is trying to kill an officer . . . .
. . . .
Premeditation doesn’t mean that the Defendant, you know, sat at home and made a list of ways that he was going to kill Officer Wolfe on August 12th of 2012 because premeditation is any amount of time for reflection . . . . That’s all that is required on attempted first degree murder . . . .
. . . .
From the first shot, [Valenzuela] was—he reflected on killing that officer, but certainly by the 5th, yeah, that’s time for reflection and that is premeditation and that is attempted murder.
There is nothing in these statements to suggest that the jury could find Valenzuela guilty of attempted first-degree murder based on an intent to commit any other crime. Accordingly, we conclude that the alleged instructional error could not have prejudiced Valenzuela and reject his claim for relief on this ground.
Disposition For all of the foregoing reasons, Valenzuela’s
convictions and sentences are affirmed.
Notes
[1]
State v. Dessureault
,
[2] The state also argued that any error was harmless because Wolfe’s identification was corroborated by DNA evidence and by video footage taken from his patrol car’s dashboard-mounted camera. Our reliability determination, however, renders analysis of this issue unnecessary.
[3] While we take no position on whether an identification based
solely on the suspect’s clothing implicates due process, we note that
several courts have rejected this view.
See Johnson v. Ross
, 955 F.2d
178, 180-81 (2d Cir. 1992);
People v. Legore
,
[4] Valenzuela argues this analysis should not be conducted for
the first time on appellate review. However, as he acknowledges,
reviewing courts in this state have evaluated reliability in the first
instance where necessary.
See Williams
,
[5] The trial court’s instruction provided: The crime of attempted first degree murder requires proof that the Defendant: