Opinion
No. 1 CA-CR 11-0884
01-08-2013
STATE OF ARIZONA, Appellee, v. ALBERT MAURICE SMITH, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Section Chief Counsel Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Cory Engle, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-105867-001 DT
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Joseph T. Maziarz, Section Chief Counsel
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix THUMMA, Judge ¶1 Albert Maurice Smith appeals from his conviction and sentence imposed following a jury trial where he was found guilty of aggravated assault. Smith argues the superior court erred by denying his motion to suppress evidence of two victims' pretrial and in-court identifications. Because the superior court did not err, the conviction and sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
On review of the superior court's ruling on a motion to suppress a pretrial identification, this court considers only evidence presented at the suppression hearing, viewed in the light most favorable to upholding the ruling. State v. Moore, 221 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156 (2009); State v. Fornof, 218 Ariz. 74, 76, ¶ 8, 179 P.3d 954, 956 (App. 2008).
¶2 At approximately 5:15 p.m. in early February 2011, husband and wife R.W. and B.W. were waiting for supper in the courtyard of a Phoenix homeless shelter. R.W. and B.W. were seated in the last row of benches when one of their friends bumped into a man, later identified as Smith, who was seated in the next row. Smith stood, pulled a knife from his pocket and stated that "somebody is going to get cut." When R.W. told Smith to put away the knife, Smith stepped across his bench and attempted to stab R.W. A friend pushed B.W., who was standing between Smith and R.W., out of the way. Smith cut R.W. on the forehead and left ear before running out of the courtyard gate. R.W. estimated six to seven minutes passed between the time Smith was bumped and when Smith ran out the gate. B.W. estimated Smith ran out of the gate 10-20 minutes after she first noticed Smith. ¶3 Police arrived within minutes and detained Smith approximately two blocks away. R.W. may have described Smith to police as an "average-height black man, medium build, slight to medium build" and B.W. may have described Smith as a black man of medium build, "kind of tall" with an afro, although the officer involved did not record and could not recall these descriptions. The officer then drove both R.W. and B.W. to see if they could identify Smith. ¶4 Both R.W. and B.W. rode together in the backseat of the police SUV to where Smith was detained for a one-man show-up identification attempt. On the way, the officer indicated R.W. and B.W. would be asked whether or not the single individual detained was the person involved in the altercation. The officer stopped the SUV 25-30 yards from the patrol vehicle in which Smith was detained and watched as Smith was brought out of the car. R.W. testified that Smith was standing outside of a police car 30-35 feet away when they arrived, and R.W. could not tell whether Smith was handcuffed. B.W. testified that Smith was only approximately two feet away from the SUV. When asked, both R.W. and B.W. immediately and simultaneously identified Smith as the man with the knife. R.W. said he was "100 percent" certain and B.W. that she was "certain" of the identification. Approximately 30-40 minutes had elapsed since the stabbing, and although dusk was approaching, there was enough natural light to see Smith clearly from the SUV. ¶5 Smith was arrested and charged with one count of aggravated assault as to R.W. and one count of aggravated assault as to B.W. Before trial, Smith challenged R.W. and B.W.'s pretrial and anticipated in-court identifications, arguing the one-man show-up was unduly suggestive and the resulting identifications unreliable. After an evidentiary hearing, the court found both pretrial identifications reliable and therefore admissible at trial. ¶6 After a four-day trial, a jury found Smith guilty of aggravated assault as to R.W. but not guilty as to B.W. After the jury found an aggravating circumstance for the assault on R.W., Smith was sentenced to an aggravated prison term. Smith timely appealed the conviction and sentence. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21, 13-4031 and -4033.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
¶7 Smith argues the court erred by denying his motion to suppress the pretrial and in-court identifications by R.W. and B.W. because the identifications were unreliable. On appeal, the superior court's rulings on pretrial identifications are reviewed for an abuse of discretion. State v. Moore, 221 Ariz. 1, 7, ¶ 17, 213 P.3d 150, 156 (2009). This court accepts the superior court's factual findings unless unsupported by the record or clearly erroneous but considers de novo the legal determination of whether those findings state a due process violation. Id. ¶8 Due process requires fundamentally fair pretrial identification procedures to ensure a defendant's right to a fair trial and to avoid an impermissible risk of misidentification. State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002). "Single person identifications are inherently suggestive," State v. Canez, 202 Ariz. 133, 150, ¶ 47, 42 P.3d 564, 581 (2002), but are nevertheless admissible "if the identification is reliable notwithstanding the suggestiveness," State v. Tresize, 127 Ariz. 571, 574, 623 P.2d 1, 4 (1980). To determine reliability, Arizona courts consider the factors described in Neil v. Biggers, 409 U.S. 188, 199-200 (1972): "[(1)] the opportunity of the witness to view the criminal at the time of the crime, [(2)] the witness' degree of attention, [(3)] the accuracy of his prior description of the criminal, [(4)] the level of certainty demonstrated at the confrontation, [(5)] and the time between the crime and the confrontation." Moore, 222 Ariz. at 7, ¶ 16, 213 P.3d at 156 (citation omitted). ¶9 In this case, the court weighed the Biggers factors and found the pretrial identifications by both R.W. and B.W. were reliable. The record as summarized above fully supports the reliability findings. ¶10 First, R.W. and B.W. were seated within a few feet of Smith before the altercation and had an unobstructed view at least from the time Smith was bumped to the time he ran away. Second, both R.W. and B.W. had their attention riveted on Smith as he pulled a knife, threatened to stab someone and proceeded to attack R.W. Third, although R.W. and B.W. testified to giving broad, general descriptions of Smith to the police, the officer's testimony supported the court's finding that there was no prior description of the assailant. Fourth, at the time of the pretrial identification, R.W. was "100 percent" certain and B.W. was "certain" that Smith was the assailant. Fifth, the show-up identification was conducted approximately 30 minutes after the stabbing. Although the absence of a prior description is perhaps neutral, all other factors support the superior court's finding that the identifications by R.W. and B.W. were reliable and, accordingly, admissible. ¶11 Smith argues the court failed to consider inconsistencies and inaccuracies in R.W.'s and B.W.'s descriptions of Smith. To be sure, there were inconsistencies, which were addressed during cross-examination. Moreover, neither witness's testimony was so inconsistent as to render the court's acceptance of the identifications an abuse of discretion, and B.W.'s characterization of the perpetrator's hair as "an afro" does not irreparably undermine her identification of Smith, who had corn-rows at the time. ¶12 Smith also argues the court erred because the witnesses were together when identifying Smith at the show-up. Allowing multiple witnesses to identify a suspect together can enhance the suggestibility of the identification procedure and runs the risk of undermining the reliability of the identifications. Here, however, the record supports the conclusion that both R.W. and B.W. identified Smith simultaneously rather than in sequence, suggesting that each witness's identification was independent. In these circumstances, and in light of the Biggers factors discussed above, the joint identification procedure does not mandate a finding that the witnesses' identifications were unreliable.
Relying on non-Arizona cases, the State argues the superior court did not need to address reliability because "the mere fact that show-up identification procedures are 'inherently' suggestive does not render a particular show-up identification 'unduly' suggestive." In essence, the State argues that although one-person show-ups may be intrinsically suggestive, unless a particular show-up was excessively or unnecessarily suggestive, the Biggers factors do not apply. Although apparently concluding the show-up in this case was impermissibly suggestive, the superior court found the identifications were reliable and, therefore, admissible. Because the superior court correctly found the pretrial identifications were admissible, this court need not and expressly does not consider the State's argument that the Biggers factors were not applicable.
Because the superior court properly found the pretrial identifications were reliable and thus admissible, this court need not and explicitly does not consider the State's argument that any error "would be harmless beyond question."
--------
CONCLUSION
¶13 The superior court properly found the pretrial show-up identifications of Smith by witnesses B.W. and R.W. were admissible at trial. Accordingly, Smith's conviction and sentence are affirmed.
______________________
SAMUEL A. THUMMA, Judge
CONCURRING: ______________________
PHILIP HALL, Presiding Judge
______________________
PETER B. SWANN, Judge