Court of Appeals of Arizona, First Division, Division One
Not for Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24
Appeal from the Superior Court in Coconino County No. S0300CR201200586 The Honorable Dan R. Slayton, Judge
Arizona Attorney General, Phoenix By Michael O'Toole Counsel for Appellee
Coconino County Public Defender, Flagstaff By Brad Bransky Counsel for Appellant
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Margaret H. Downie joined.
¶1 Kenneth Manygoats (defendant) appeals from his convictions and sentences for kidnapping, sexual abuse, and assault. On appeal, he argues that the trial court abused its discretion by (1) admitting a witness's pretrial identification of him; (2) excusing a venire person for cause; (3) permitting the prosecutor to elicit testimony that he had invoked his Fifth Amendment rights; and (4) allowing a witness to explain the underlying circumstances of a conviction. He also claims that fundamental error occurred because "numerous hearsay statements" were admitted at trial and the prosecutor committed misconduct when he engaged in "vouching." For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 On July 18, 2012, defendant laid down behind a woman who was asleep on the grass in Ponderosa Park in Flagstaff, inserted his hands down her pants, and touched her vagina. The woman woke up and fought to get defendant off of her, but he held her down, choked her and hit her in the face as he attempted to pull off her trousers. When other people in the park noticed what was happening and intervened, defendant stood up and quickly left through a gate at the rear of the park. Within minutes, he was apprehended by Flagstaff Police Officer Charles Hernandez, who responded to a 911 call and took him into custody.
¶3 The state charged defendant with count 1, kidnapping, a class 2 felony; count 2, sexual abuse, a class 5 felony; count 3, attempted sexual assault, a class 3 felony; and count 4, assault, a class 3 misdemeanor. After a trial, a jury found him guilty of kidnapping, sexual abuse, and assault, as charged, but not guilty of attempted sexual assault. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1)(1992), 13-4031 and 13-4033 (2010).
A. Witness's Pretrial Identification
¶4 On July 18, Teresa B., a woman whose backyard abuts Ponderosa Park, identified defendant as the victim's assailant while Defendant was seated in the back seat of Officer Hernandez's patrol car at the scene. She had viewed a part of the incident and had approached Hernandez, wanting to assist with the investigation. Prior to trial, defendant moved to suppress Teresa's pretrial identification of him, arguing that it was obtained by an "unnecessarily suggestive" procedure that rendered it inherently unreliable. After holding an evidentiary hearing on the motion, the trial court held that the manner in which the one-person show up was conducted by Hernandez was not "unduly suggestive" and also found that the identification was "reliable enough" to deny the motion to suppress under the factors listed in Neil v. Biggers, 409 U.S. 188 (1972). On appeal, defendant argues that the court's error in finding that the pretrial identification was not unduly suggestive deprived him of a fair trial. We do not agree.
¶5 We review a trial court's ruling on the admissibility of a pretrial identification for an abuse of discretion. State v. Moore, 222 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156 (2009). "A trial court's ruling on a motion to suppress is reviewed solely based on the evidence presented at the suppression hearing, " State v. Newell, 212 Ariz. 389, 396, ¶ 22, 132 P.3d 833, 840 (2006) (citation omitted), viewed in the light most favorable to sustaining the trial court's ruling. State v. Teagle, 217 Ariz. 17, 20, ¶ 2, 170 P.3d 266, 269 (App. 2007). While we defer to the trial court's factual findings that are supported by the record and not clearly erroneous, we review de novo the court's legal determinations derived from those facts. Moore, 222 Ariz. at 7, ¶ 17, 213 P.3d at 156.
¶6 On appeal, defendant renews his argument that Teresa's one-on-one identification was "inherently" and "unduly" suggestive due to the fact that he was seated alone in the back of the police vehicle when she identified him. He maintains that the trial court erred in finding the procedure was not "unduly suggestive" and that it did so because it improperly applied the Biggers reliability factors in reaching its conclusion. We find no error.
¶7 The Supreme Court has recognized that due process concerns arise only when law enforcement officers use a procedure that is both suggestive and unnecessary. Perry v. New Hampshire, U.S. , 132 S.Ct. 716, 724 (2012). Even when police use such a procedure, however, suppression of the identification is not the inevitable consequence. Id. Instead of imposing a perse exclusionary rule, a trial court is required to assess "on a case-by-case basis . . . whether improper police conduct created a 'substantial likelihood of misidentification.'" Id. In making an assessment, the reliability of the eyewitness identification is the linchpin. Id. at 724-25 (internal quotations and citations omitted). "Where the indicators of a witness's ability to make an accurate identification are outweighed by the corrupting effect of law enforcement suggestion, the identification should be suppressed." Id. at 725 (internal quotations and citations omitted). "Otherwise, the evidence (if admissible in all other respects) should be submitted to the jury."
¶8 A due process check for reliability comes into play only when a defendant establishes that improper police conduct occurred. Id. at 726. Even then, applying a "totality of the circumstances" approach, the identification may be admissible if it meets the Biggers standards. Id. at 725. Under Biggers, the factors to be considered in evaluating the likelihood of misidentification include: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description, (4) the level of demonstrated certainty by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.
¶9 In State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979), our supreme court found that a "one-man show-up" while the defendant was held in a squad car "at the scene of the crime or near the time of the criminal act [was] permissible, " and that it is for the trial court to determine the fairness of the prior identification. In State v. Williams, 144 Ariz. 433, 440, 698 P.2d 678, 685 (1985), the court held that a "reliable" one-person show-up identification is properly admissible at trial because it "allows the police to either have the culprit identified while the witness has a fresh mental picture of him or her or else release an innocent person and continue searching for the culprit before he or she escapes detection." Thus, while the supreme court acknowledged that a "one-man show-up" may be "inherently suggestive, " it held that the resultant identification did not violate due process so long as the identification possessed sufficient indicia of reliability under the totality of the circumstances. Id. at 439-40, 698 P.2d at 684-85.
¶10 Viewing the evidence at the suppression hearing in the light most favorable to the trial court's ruling as required by Teagle, 217 Ariz. at 20, ¶ 2, 170 P.3d at 269, the court here properly admitted Teresa's prior identification of defendant at the scene. First, the evidence supports the trial court's determination that the manner in which Hernandez conducted the one-man show-up was not unduly or improperly suggestive.
¶11 Officer Hernandez testified that he responded to a 911 dispatch call of an assault in Ponderosa Park by a suspect described as an "Indian male" wearing a "maroon shirt, light jeans [and a] baseball cap" headed towards a Circle K. He arrived at the scene within five to ten minutes of the call, and immediately located defendant, a Native American who was wearing jeans and holding a "purple" shirt while talking to two other men. Hernandez detained defendant, handcuffed him, and placed him in the rear of the patrol vehicle. Hernandez then walked into the park to locate potential witnesses.
¶l2 Teresa approached Hernandez in the park and told him that she "wanted to provide more information to help . . . apprehend the suspect from the park." She told him what she had seen and heard, and described the male involved as "wearing a purple shirt and blue jeans." When Hernandez asked her whether she would be able to identify the man, she indicated that she could identify him if she saw him again. He then asked her if she would be willing to "take a look at somebody." Hernandez explained that he had someone in the back of his patrol car, and asked her to "look and see if it was or was not the man she saw in the park." Furthermore, Hernandez testified that he was aware from his years of experience about the importance of telling a witness that it "could or could not" be the person, and that he ...