Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2010-007434-001 The Honorable Stephen P. Lynch, Judge
Arizona Attorney General, Craig W. Soland Counsel for Appellee
Maricopa County Public Defender, Tennie B. Martin Counsel for Appellant
Presiding Judge Randall M. Howe and Judge Samuel A. Thumma joined.
Patricia A. Orozco, Judge
¶1 Jacoury Lukor Horton-Houston (Defendant) appeals his conviction and sentence for one count of possession or use of marijuana, a class one misdemeanor. Specifically, he argues his pre-trial identification by a police officer witness was the result of the prosecutor's unduly suggestive use of Defendant's photograph during witness preparation. Defendant contends the trial court abused its discretion in allowing the police officer to identify him at trial. For the following reasons, we find no abuse of discretion and affirm. FACTS AND PROCEDURAL HISTORY
¶2 Phoenix Police Officer M. was on patrol the morning of January 28, 2010. He noticed a gray Buick Lucerne in the parking lot of a convenience store around 1:30 a.m. near Indian School Road. Officer M. saw the car exit the parking lot, driving westbound in the eastbound lane. Officer M. initiated a traffic stop for the violation.
¶3 The driver pulled over a short distance west of the convenience store into the parking lot of an apartment complex. Officer M. described the parking lot as being "well lit" by street lights. Officer M. directed his patrol vehicle's spotlight towards the Buick and approached the car with his flashlight illuminated.
¶4 The driver rolled down the window as Officer M. approached and Officer M. asked the driver for his identification, vehicle registration, and proof of insurance. The driver produced his identification card. Officer M. compared the picture on the identification card with the driver's face to confirm that he matched the physical description and age of the person on the card. Officer M. testified at the Dessureault hearing that the identification card the driver handed him was Defendant's.
¶5 While Officer M. was at the car's window, the driver stated that his driving privileges were suspended and asked Officer M. to "give him a break." Officer M. immediately called for backup because the driver appeared "unusually nervous." He then returned to the patrol vehicle to determine the driver's status. Officer M.'s computer system alerted him that the driver had an outstanding warrant.
¶6 Simultaneously, the driver exited the car and fled the parking lot. Officer M. pursued the driver on foot. Officer R. responded to Officer M.'s call for backup and assisted in the foot pursuit. During the pursuit, Officer M. witnessed the driver remove and discard a plastic bag from his waistband. Officers M. and R. did not apprehend the driver. After the failed pursuit, Officer M. secured the driver's discarded bag, which contained 9.6 grams of marijuana. Officer M. determined the car was registered to Defendant's mother. He subsequently wrote a report that included the driver's physical description.
¶7 Defendant was indicted on June 15, 2011. The State scheduled an interview with Officer M. to be held on November 7, 2011. Defense counsel was to be present at the interview. Before the interview, defense counsel mentioned to the prosecutor that she wanted to show the officer some photographs during the interview. Officer M. arrived at the interview before defense counsel. Upon Officer M.'s arrival, the prosecutor showed him Defendant's booking photo and asked if the photo was of the individual with whom the officer had come in contact with the morning of January 28, 2012. He stated that it was. The prosecutor informed Officer M. that Defendant was claiming he was not the individual driving the vehicle. During the interview, defense counsel discovered that the prosecutor had shown Officer M. the photograph.
¶8 Defense counsel moved to exclude Officer M.'s in-court identification of Defendant, claiming the pretrial identification procedure was impermissibly suggestive. The court did not believe the out of court identification ...