Opinion of the Court of Appeals, Division Two. 235 Ariz. 617, 334 P.3d 1276 (2014) . Appeal from the Superior Court in Pima County. The Honorable Richard D. Nichols, Judge, The Honorable Scott Rash, Judge. No. CR20123276-001.
Appeal from the Superior Court in Pima County, AFFIRMED. Opinion of the Court of Appeals, Division Two, AFFIRMED.
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, David A. Simpson (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona.
Isabel G. Garcia, Pima County Legal Defender, Scott A. Martin (argued), Assistant Legal Defender, Tucson, Attorneys for Sergio Arturo Rojo-Valenzuela.
JUSTICE BERCH authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.
[¶1] An inherently suggestive one-person show-up identification procedure implicates due process, but such an identification is nevertheless admissible at trial if it is sufficiently reliable. State v. Williams, 144 Ariz. 433, 439-40, 698 P.2d 678, 684-85 (1985). We must decide whether an appellate court may make a reliability determination in the first instance when the trial court has failed to do so. We conclude that although the trial court should make reliability findings before identification evidence is presented to a jury, an appellate court may make the reliability determination if the trial court record permits an informed analysis.
[¶2] One evening in 2012, Tucson Police Officer Jared Wolfe responded to an emergency call concerning a man with a gun who was fleeing in a vehicle. He spotted the suspects' vehicle and gave chase. After a high-speed pursuit through a residential neighborhood, the suspects suddenly stopped their car and fled on foot. Wolfe followed one suspect in his patrol car, shining his spotlight on him as he jumped over a block wall. Wolfe testified at a pretrial suppression hearing that the suspect was " of thin build [and] short stature" and was wearing " a black long-sleeved shirt, black pants . . . [and] black and red shoes." Although Wolfe never saw the suspect's face, he testified that the suspect was approximately twenty to thirty feet away and that he was focused on the suspect and free from other distractions. He further testified that officers develop the ability to attend closely to physical details while on patrol.
[¶3] Wolfe remained on the scene until the area was secured and then was taken to separately view two individuals. He could not identify the first suspect, but did positively identify the second suspect, Sergio Arturo Rojo-Valenzuela. He noted that Rojo-Valenzuela was wearing " the same pants and shoes that were worn by the individual that went over the wall" and that " [h]is physical build was exactly what [he] remembered . . . thin, short stature." Wolfe testified that he was ninety-nine percent certain that Rojo-Valenzuela
was the man who went over the wall " based on everything else minus the face."
[¶4] After holding a Dessureault hearing, the trial judge denied Rojo-Valenzuela's motion to suppress Wolfe's pretrial identification. See State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969) (holding that the trial court must conduct an evidentiary hearing when a pretrial identification is challenged). The judge did not make any findings regarding the procedure's suggestiveness or the identification's reliability because he did " not find this to be a typical identification that would be the subject of a suppression motion." On appeal, the State conceded that the show-up identification procedure was inherently suggestive and that the trial court erred in concluding that Wolfe's identification was not subject to a due process identification analysis. State v. Rojo-Valenzuela, 235 Ariz. 617, 619 ¶ 5, 334 P.3d 1276, 1278 (App. 2014). Relying on the pretrial hearing transcript, see id. at 619 ...