Court of Appeals of Arizona, First Division, Department E
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2010-005952-001 The Honorable Dawn M. Bergin, Judge The Honorable Susan M. Brnovich, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender, Terry J. Reid, Deputy Public Defender Attorneys for Appellant
ANDREW W. GOULD, Presiding Judge
¶1 David Thomas Harmon appeals his convictions for kidnapping, second-degree burglary, attempted kidnapping, and attempted second-degree burglary. For the reasons that follow, we find no reversible error and affirm.
¶2 A grand jury indicted Harmon for kidnapping and second-degree burglary on November 28, 2009, when he allegedly restrained Kathleen L. and entered her residence with the intent to commit a theft or felony therein, and for attempted kidnapping and attempted second-degree burglary on January 2, 2010, when he allegedly attempted to do the same to Monica P.
¶3 The two victims -- one 36 years old and the other 25 years old -- lived in the same condominium complex, a short distance away from the mobile-home park where Harmon resided. Kathleen L. testified that when she returned home on November 28, 2009, at about 11 p.m., a man suddenly appeared from behind a pillar next to her garage and grabbed her by the neck, covering her mouth. She described him as a white male about six feet tall, of thin build, wearing a navy hooded jacket, work boots, jeans, leather work gloves, and prescription wire-rimmed glasses. After knocking her down on the garage floor, he forced her inside her residence, where he looked at the electronic equipment in her living room before leaving abruptly when the house alarm sounded. She positively identified Harmon at trial as the man who had attacked her.
¶4 Monica P. testified that she became frightened when she returned home at about 12:30 a.m. on January 2, 2010, and a man in a red Jeep Cherokee abruptly swerved around her and parked two car-lengths in front of her. She rushed into her house as he got out of his car. After she locked her front door and shut off the hallway light, she looked out a front window and saw him walking toward her residence, wearing gloves and putting a beanie on his head. She woke her brother and they both observed the man walk up toward the residence door before disappearing into a blind spot. She described the man as a white male about five feet ten inches tall, of slender build, dressed in blue jeans and a blue sweater with black gloves and a beanie. Shortly afterward, she identified Harmon as the person who had followed her to her door. Another resident of the condominium complex also identified Harmon as the person whom he had observed acting suspiciously at about the same time.
¶5 The jury convicted Harmon of the charged offenses and found the existence of aggravating circumstances. The judge further found the existence of two historical prior convictions, and sentenced Harmon to super-aggravated terms totaling sixty years in prison. Harmon filed a timely notice of appeal, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(2), 13-4031, and 13-4033(A).
Reliability of Identification by Kathleen L.
¶6 Harmon argues first that the trial court erred in admitting Kathleen L.'s identification of Harmon as her attacker following what the trial court found was an unduly suggestive pretrial photo lineup. Police woke Kathleen L. up sometime between 1 and 3 a.m. on January 2, 2010, and showed her what she described as a "kind of poor quality" black-and-white photo lineup including a photo of Harmon. At that time, Kathleen L. picked the photograph of a person other than Harmon, but was not "extremely confident" of her identification, in part because she was "shocked and upset" that the person might have returned to her neighborhood, she was "exhausted, " and the dining room in which she made the identification was "dimly lit." At the time, she identified Harmon's voice from a recording of his interaction with police after being stopped earlier that night.
¶7 Two days later, a detective who was not aware that this victim had already been shown a black-and-white photo lineup with Harmon's picture, came by around 10 or 11 a.m. and showed her a color photo lineup. This time, the victim picked Harmon's photo, and testified that she was so certain that it was the person who had attacked her, she started "shaking." She testified that she recognized her attacker in the second photo lineup because his "facial features, his eyes, and his nose . . . were pretty distinctive, " and she simply had not looked closely enough during the first lineup. She testified that the black-and-white photo had made Harmon's hair appear whiter, and because of her attacker's clothing and the fact "his face wasn't really wrinkly, " she had not expected him to be "real old." "The second time, I looked past the hair and actually looked at his face closer, and I recognized him from those features."
¶8 The Due Process Clause of the Fourteenth Amendment "requires us to ensure that any pretrial identification procedures are conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002) (citation omitted). A defendant who challenges an unduly suggestive pretrial identification procedure is entitled to a hearing, at which the state is required to prove by clear and convincing evidence that the pretrial identification procedure was not unduly suggestive. State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) . In this case, after hearing evidence, the ...