APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103680001 Honorable Christopher C. Browning, Judge
The opinion of the court was delivered by: Eckerstrom, Presiding Judge.
¶1 This case involves a series of convenience store robberies. Following a retrial, appellant Nelson Nottingham was convicted of one count of robbery and two counts of armed robbery. He was sentenced to a combination of consecutive and concurrent prison terms totaling 31.5 years. On appeal, Nottingham maintains the trial court violated his right to due process by permitting the store clerks to identify him during trial as the perpetrator, even though each had failed to do so when presented with a non-suggestive photo lineup near the time of the respective incidents. Although we conclude the court did not err in allowing the in-court identifications, we find it erred in failing to instruct the jury on the reliability of such identification testimony. Because we cannot conclude the error was harmless, we reverse Nottingham's convictions and remand the case for a new trial.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdicts. State v. Powers, 200 Ariz. 123, ¶ 2, 23 P.3d 668, 669 (App.), approved, 200 Ariz. 363, 26 P.3d 1134 (2001). Within a one-week period in the summer of 2010, three separate Tucson convenience stores were robbed. The three store clerks who witnessed the robberies were unable to identify Nottingham from pretrial photographic lineups shown to them within several weeks of the respective offenses.*fn1 In fact, two of the clerks identified other persons as most closely resembling the perpetrator. Each clerk also was shown surveillance videos taken from the stores at the time of the robberies. Over Nottingham's objection, the clerks were allowed to identify him in court at his first trial. In a case that focused substantially on the reliability of those identifications, the jury could not reach a verdict.
¶3 Before his second trial, Nottingham moved to suppress any pretrial and in-court identification based on State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), the Due Process Clause of the United States Constitution, and Rule 403, Ariz. R. Evid., contending "the show-up in the original trial was unduly suggestive." The trial court denied the motion, ruling that Dessureault's procedural protections applied only to pretrial identifications and not those that occur at trial. The court also found that, in any event, the witnesses' identification of Nottingham at the first trial "were not the product of any unduly suggestive circumstances" because the witnesses had been vigorously cross-examined by counsel and their testimony had been based on their independent recollection of events. Although Nottingham had requested a jury instruction that specified the factors the jury should consider when assessing the reliability of eyewitness identification testimony, the court did not give the instruction. On retrial, each clerk identified Nottingham in court as the one who had committed the robbery. Nottingham was convicted and sentenced as set forth above, and this timely appeal followed.
¶4 Nottingham argues the "circumstances surrounding the in-court trial identifications of [him] approximately seven to eight months after the offenses by three store clerks who failed to identify him in a photo lineup . . . create a substantial likelihood of misidentification." Specifically, he contends the trial court committed reversible error by (1) failing to hold a Dessureault hearing before the second trial, (2) admitting the in-court identifications by the store clerks, and (3) refusing his request for a Dessureault instruction. We review a trial court's ruling on an in-court identification for an abuse of discretion. State v. Leyvas, 221 Ariz. 181, ¶ 9, 211 P.3d 1165, 1168 (App. 2009). "But we review de novo the question whether a common law procedural rule with constitutional underpinnings, such as that set forth in Dessureault, applies to a particular factual scenario." Leyvas, 221 Ariz. 181, ¶ 9, 211 P.3d at 1168.
¶5 The Due Process Clause of the Fourteenth Amendment requires that pretrial identification procedures be conducted by police in a manner that is "fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr,201 Ariz. 509, ¶ 46, 38 P.3d 1172, 1183 (2002), citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Accordingly, Arizona courts have held that the presentation of identification evidence arising from suggestive procedures that create "a substantial likelihood of misidentification" violates a defendant's right to due process. Id.
¶6 In Dessureault, our supreme court established a process for challenging pretrial identification procedures that are "significantly suggestive and as such materially increase the dangers inherent in eye witness identification." 104 Ariz. at 383, 453 P.2d at 954; accord Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169. That process entitles a defendant to (1) a hearing to challenge a proposed in-court identification on the grounds that the underlying pretrial identification process was unduly suggestive, (2) preclusion of any in-court identification if the trial court concludes both that the pretrial identification process was unduly suggestive and would taint any subsequent in-court identification of the suspect, and (3) a cautionary jury instruction if the court concludes the pretrial identification process was suggestive but not sufficiently so to justify preclusion in light of the circumstances of the case. Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169.*fn2
¶7 In Dessureault, as in most cases presenting pretrial identification issues, the identification process had been arranged by the ...