Not for Publication -Rule 28, Arizona Rules of Civil Appellate
Appeal from the Superior Court in Pima County No. CR20101166001 The Honorable Jose H. Robles, Judge Pro Tempore
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee
Law Offices of Christopher L. Scileppi, P.L.L.C., Tucson By Christopher L. Scileppi Counsel for Appellant
Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Howard concurred.
¶1 Victor Lobato was convicted after a jury trial of two counts of armed robbery and two counts of aggravated assault. Lobato appeals from his convictions and sentences and claims his due process rights were violated when the trial court admitted an in-court identification without first holding a hearing to determine its reliability. He also contends that the prosecutor engaged in misconduct and committed a disclosure violation. For the reasons set forth below, we affirm Lobato's convictions and sentences, but vacate the criminal restitution order entered at sentencing.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). We also include pertinent procedural matters relevant to Lobato's arguments on appeal.
¶3 In March 2010, Lobato entered a hair salon wearing a baseball cap, surgical mask, and blue gloves. He approached the customer counter, laid a gun on the countertop, and demanded money from two salon employees, A.S. and E.W. A.S. and E.W. gave Lobato money from the cash drawers, and he exited the salon. Lobato was observed from the parking lot by a third hair salon employee, K.L.
¶4 During the state's opening statement, the prosecutor explained only K.L. was able to identify Lobato from a photo lineup. At trial, however, the prosecutor asked E.W. whether the person who had robbed her was in the courtroom. E.W. answered, "Yes, " and proceeded to identify Lobato. E.W. indicated that she had not been shown a photographic lineup because she "was not there when [the police] brought the lineup." The prosecutor clarified that E.W. had never seen a photographic lineup, to which she answered: "No. I was shown some MySpace pictures." E.W. also conceded that her in-court identification may have been tainted by seeing Lobato seated at the defense table, stating, "It could be tainted, but looking at him, I know that those are the eyes I saw through-between the mask and the hat that day."
¶5 On cross-examination, E.W. testified that it had not been police officers but rather the prosecutor who showed her the MySpace photographs of Lobato during a pretrial meeting. E.W. also indicated she understood at the time that the individual in the photographs shown to her were of the defendant in this case.
¶6 The following trial day, Lobato filed a motion for a mistrial and, in the alternative, a motion to strike testimony and request for a limiting jury instruction. In his motion, Lobato contended that the prosecutor's having shown E.W. the photographs was unduly suggestive and that the procedures used had tainted the identification to the degree that it was unreliable. The trial court denied Lobato's motion for mistrial as well as his motion to strike E.W.'s in-court identification, but granted a curative jury instruction, to which both of the parties stipulated.
¶7 The jury found Lobato guilty of armed robbery and aggravated assault against A.S. and E.W. The trial court imposed partially aggravated and presumptive sentences of imprisonment, to run concurrent with each other, the longest of which was 10.5 ...