United States District Court, D. Arizona
REPORT AND RECOMMENDATION
SUSAN R. BOLTON, District Judge.
Petitioner Jose Abel Cabrera-Somosa, who is confined in the Arizona State Prison Complex-Yuma in San Luis, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and Petitioner filed a Reply (Doc. 14).
On October 14, 2007, Phoenix Police Officer Bret Glidewell was patrolling north Phoenix in a police cruiser. (Exh. DD at 160-61.) He was 22-years-old and had been an officer for just 7 months. (Id. at 160.) At the intersection of 36th Street and Sweetwater, he "saw a single cab Chevy S10, light brown in color, kind of a tan-ish color" fail to stop at a stop sign. (Id. at 163-64.) He turned on his lights to initiate a stop, but "[t]he pickup at this time failed to stop right away, " and Officer Glidewell had to use his bullhorn to get the driver to pull over. (Id. at 165; Exh. BB at 5, 39.) The officer read the license plate of the truck into the radio. (Exh. DD at 166, 169.) When the driver eventually stopped, his "eyes were glued on his driver's hand mirror... watching [Officer Glidewell's] actions." (Id. at 166.)
When Officer Glidewell realized the driver had "not once took his eyes off [him]... [he] made an actual mental decision to change tactics of [his] traffic stop." (Id. at 168.) "[I]nstead of walking straight up on the vehicle, [Officer Glidewell] walked up wide, almost to the middle of the dividing line of the street, " giving him "a clear observational view of the occupant, including the interior of the cab of the truck." (Id. at 170.) This allowed him to get a view of the left side of the driver's face from "seven or so" feet away. (Id. at 175-76.) The driver initially turned his head to the right, looking out the rearview mirror, after losing sight of the officer; he then turned his body to the left and "squared up, " giving Officer Glidewell "a full view of his face." (Id. at 176.) Officer Glidewell saw the driver was a Hispanic male, in his 20s to 30s; he had black hair and sweat on his forehead. (Id. at 177.) When he turned, the driver mumbled something and Officer Glidewell saw "metal capping around his front teeth." (Id.) He identified Petitioner in court as the individual who was driving the truck. (Id.)
When the driver turned, Officer Glidewell also saw he had a pistol in his right hand, and saw two flashes. (Id. at 176-77.) The officer immediately reached for his gun and returned fire as the driver fled. (Id. at 182.) Witnesses in the area heard three loud sounds, described as "bangs, " or "pops, " "booms" or "gunshots." (Exh. AA at 52, 56, 59, 64; Exh. BB at 6, 39.)
One of the shots hit Officer Glidewell in the chest, and he fell on his back. The truck slowed down, and Officer Glidewell thought he was about to be "executed"; he took one last shot at the truck, and the truck drove away. (Exh. DD at 183-84; Exh. AA at 63-64, 67.) He worked his way back to his car, and put out "code 998" on the police radio, which indicates an officer-involved shooting. (Exh. DD at 183; Exh. AA at 95, 104, 112.) Officer Glidewell gave a description of the car and driver, stating the truck was "a 2001 brown Chevy S10, occupied by one Hispanic male, 20 to 30, black hair, thin moustache, some type of metal on his teeth, armed with a black 1911 style.45 automatic." (Exh. DD at 186; Exh. AA at 106, 126, 140.) He later also told another officer that the side mirrors of the truck were possibly black and did not match the color of the truck. (Exh. CC at 30.)
Officers who responded to the scene indicated that Officer Glidewell was calm under the circumstances, and that he was certain of his descriptions of the suspect and his truck. (Exh. AA at 128, 147.) Officer Glidewell was taken to the hospital; because he was wearing his bullet-proof vest, he was not seriously injured, having only slight redness on his chest. (Exh. DD at 189, 193-94.)
An intelligence analyst obtained a picture of the registered owner of the vehicle involved in the shooting, and e-mailed it to police officers in the field. (Exh. CC at 108.) The photo did not show the registered owner's teeth. (Id. at 117.) A detective from the rapid deployment unit ("RDU"), which investigates officer-involved shootings, showed officer Glidewell the picture at the hospital, without informing him this was the registered owner the truck. (Exh. AA at 85; Exh. CC at 110-12.) The RDU officer asked officer Glidewell if he recognized the individual in the photo. (Exh. CC at 111.) Officer Glidewell responded, without hesitation, that "Yes. That's the guy that shot me." (Exh. CC at 111, 113; Exh. AA at 86-87.)
Detectives found the address to which the truck was registered, and within 20 minutes, went to that location to see if the shooter would come home. (Ex CC at 104-05.) At the house, Petitioner's ex-wife, Yessica Rodriguez, told police that Petitioner no longer lived there, and gave officers his new address on 6th Drive. Petitioner's ex-wife also gave police his cell phone number, and the police pinpointed its location near the address she had given them. (Exh. DD at 111-12, 121.) Police sent a SWAT team to the location, and found Petitioner's truck in the driveway. (Id. at 132-133.)
An officer saw Petitioner walk out the front door, and return inside. (Exh. CC at 138.) The police obtained permission from another resident to search and clear the house, and found Petitioner in a locked bedroom. (Id. at 139-40.) The room contained the keys to the truck and the cell phone police had been tracking. (Exh. DD at 148.) The truck had a different license plate than Officer Glidewell had radioed in; the original plates were on the floor of the truck, with a screwdriver underneath them. (Id. at 54, 56, 62.) The truck was champagne-colored and had black mirrors. (Id. at 61.) Inside the driver-side door was Petitioner's El Salvadoran passport. (Id. at 63.) The title of the truck showed it was registered to Petitioner and the VIN number on the title matched the VIN number of the truck. (Id. at 67-68.)
When police eventually questioned Petitioner, after advising him of his Miranda rights and of his right to consulate notification, he told the interviewing officer that he had not worked on October 14, 2007. (Id. at 14.) He told the officer that on that day "he had just been driving around." (Id. at 14.) This initial version of events did not "account for the timeframe when the shooting occurred." (Id. at 15.) He later told the officer that he had eaten some food and "actually went to an apartment complex... [a]nd at that time he had loaned his truck to a friend named Julio." (Id. at 14.) Petitioner said that he remained at the apartment "with friends that he couldn't identify until 6:00 p.m. when Julio brought his vehicle back to him." (Id.) Petitioner did not give the officer the apartment number where he was at the time he loaned his truck out to "Julio." (Id. at 21.) Petitioner claimed not to know "Julio's" last name or where he lived. (Id. at 16.) He did not say where he met "Julio" and gave a vague description of him. (Id. at 17.)
When asked about his lending his car to a stranger without knowing how to get a hold of him, Petitioner stated "that's the kind of person he is." (Id. at 18.) Petitioner told the officer that when Julio returned with the truck, it had two bullet holes in the rear window on the driver's side, which Julio explained by saying "he had had some troubles with a guy and that he would take care of it." (Id. at 20.) Petitioner claimed he did not report the incident to the police because he was afraid of being deported. (Id. at 22.) An officer who did a search of Petitioner's contacts with the police found the Petitioner had called the police on multiple occasions, at least once when had been the victim of a crime. When asked about the switched license plate on the truck, Petitioner "said he hadn't noticed it." (Id. at 22.) Petitioner "did admit to noticing that there were license plates on the ground or the floorboard, " which he said were normally kept underneath the seat. (Id.)
On April 2, 2008, Petitioner was indicted on charges of: (Count 1) attempted first-degree murder, a class 2 dangerous felony; (Count 2) aggravated assault, a class 2 dangerous felony; and (Count 3) misconduct involving weapons, a class 4 felony. (Exh. A.) The State also alleged the following aggravating circumstances: (1) the offenses involved the infliction or threatened infliction of serious physical injury; (2) the offenses involved the use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, specifically, a firearm; (3) the offenses caused physical, emotional, or financial harm to the victim or, if the victim died as a result of the conduct of the defendant, caused emotional or financial harm to the victim's immediate family; (4) the offenses involved lying in wait for the victim or ambushing the victim during the commission of any felony, specifically aggravated assault; (5) the defendant endangered the public safety by discharging a firearm within a residential community; (6) the defendant attempted to elude police; (7) the defendant failed to render aid to the victim; and (8) the defendant has previously been removed from the United States. (Exh. B.)
Following a motion for Rule 11 competency proceedings, the court found that Petitioner "understands the proceedings and is able to assist counsel with Defendant's defense." (Exh. C at 2.) The court also held a hearing addressing a request by Petitioner for new counsel. (Exh. Y.) The court denied the request, finding that Petitioner's complaints "were not sufficiently substantial' to warrant the issuance of an order substituting counsel." (Exh. D.)
On December 31, 2008, Petitioner filed a motion to suppress both his out-of-court and his in-court identification by the victim. (Exh. E.) Petitioner asked the court to set a hearing pursuant to State v. Dessureault , 453 P.2d 951 (Ariz. 1969), citing the Fifth and Fourteenth Amendments to the United States Constitution. (Id.) Petitioner claimed that the victim's identification was not reliable, because the victim had initially identified him from a single photo on a police officer's cell phone, which he argued was as inherently suggestive as a one-man show up. (Id. at 4.)
On January 16, 2009, the court held the Dessureault hearing, outside the jury's presence. (Exh. CC at 38-88.) During the hearing, Officer Glidewell described the circumstances that led him to stop Petitioner's truck on October 14, 2007, including the fact that the truck did not initially stop, and that he had to use his bullhorn. (Id. at 41-42.) Officer Glidewell stated that Petitioner "used his driver's side mirror and proceeded to watch me at all times, " which was uncommon, as people who are pulled over are usually fumbling for identification or registration. (Id. at 43.) Officer Glidewell testified that "instead of walking up on it like a normal traffic stop, [he] walked out wide toward the center line of the road so [he] could get out of the driver's line of sight." (Id. at 44.)
The officer testified that he could see Petitioner, and never lost sight of him, as he "approached the vehicle [at] almost a 90-degree angle from the driver's side window." (Id. at 47-48.) When he got within about 6-7 feet, the driver, "who [was] looking over his right shoulder... turned [left] and gave [the officer] a full frontal view of his person." (Id. at 49.) The lighting conditions were good, there was minimal to no cloud cover, and no shadows or obstructions. (Id. at 49.) The officer said Petitioner was Hispanic, and had black hair. (Id. at 51.) The most distinguishing thing Officer Glidewell saw was "metal capping that went around [Petitioner's] teeth." (Id. at 51.) He also saw two flashes and a black 1911.45-caliber-style pistol. (Id. at 51.) Although he described the situation as "scary and fast, " Officer Glidewell testified that, he "was able to get a clear, clear look at the defendant to the T, his gun... his face, his hair, his sweat on his forehead, his teeth, the caps around his teeth, his... thin mustache." (Id. at 52, 79.) Petitioner was asked to expose his teeth to the officer during the hearing. (Id. at 54-55.) Officer Glidewell identified Petitioner at the hearing as the individual who shot him, and he said he had no doubt whatsoever. (Id. at 54-55, 74.)
Officer Glidewell explained that at the hospital, an officer held up a photo of an individual on his cell phone, asking him "is this or is this not the guy, " and that he immediately recognized it to be the individual who had shot him. (Id. at 61.) The State displayed the photo on a computer screen; the court admitted the photo for purposes of the hearing. (Id. at 65, 70.) Officer Glidewell testified that he saw the photo approximately 1 hour and 20 minutes after he gave the description of the individual who shot him, including the description of the metal on the shooter's teeth. (Id.)
The court heard argument regarding the in-court identification, and ruled from the bench as follows:
The court agrees with the defendant that as a matter of fact, this was a - what is called... a one-man show-up. I also agree with the defendant that as a matter of law, this was inherently suggestive. However, the plaintiff, the State, has shown by clear and convincing evidence the sufficient factors that would make the identification both reliable and - sort of a gatekeeper terminology - and allow the in-court identification based on these facts.
First, the witness did have the opportunity to view the criminal at the time of the crime. That opportunity was at once both great and excellent. It was also such not only because of the circumstances but despite the circumstances; that is, the officer's opportunity was significant because of what was happening. And the court finds, first, the witness to be both credible and persuasive, that it was, despite the high emotion of the circumstances, as a result of his training, that he could, ...