817 P.2d 774 (Utah 1991), 880425, State v. Ramirez

Docket Nº:880425.
Citation:817 P.2d 774
Opinion Judge:ZIMMERMAN, Justice:
Party Name:STATE of Utah, Plaintiff and Appellee, v. Livio Alphonso RAMIREZ, Defendant and Appellant.
Attorney:Debra K. Loy, Richard G. Uday, Salt Lake City, for defendant and appellant. R. Paul Van Dam, Charlene Barlow, Salt Lake City, for plaintiff and appellee.
Case Date:April 23, 1991
Court:Supreme Court of Utah
 
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Page 774

817 P.2d 774 (Utah 1991)

STATE of Utah, Plaintiff and Appellee,

v.

Livio Alphonso RAMIREZ, Defendant and Appellant.

No. 880425.

Supreme Court of Utah.

April 23, 1991

Page 775

       Debra K. Loy, Richard G. Uday, Salt Lake City, for defendant and appellant.

       R. Paul Van Dam, Charlene Barlow, Salt Lake City, for plaintiff and appellee.

       ZIMMERMAN, Justice:

       Livio Alphonso Ramirez appeals his conviction of one count of aggravated robbery, a first degree felony. He challenges his conviction on several grounds, claiming, inter alia, that he was seized and searched in violation of the United States and Utah

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Constitutions, that an eyewitness identification of him was unconstitutionally suggestive and unreliable, that the prosecutor made inappropriate and prejudicial remarks in his opening statement and closing argument, and that the evidence presented at trial was insufficient to sustain the conviction. We vacate the conviction and remand for retrial on grounds that in ruling on Ramirez's pretrial motion to suppress, the trial judge failed to make adequate findings and that absent the findings of fact and conclusions of law required by rule 12(c) of the Utah Rules of Criminal Procedure, it is impossible for us to determine the lawfulness of the stop and seizure. Utah R.Crim.P. 12(c).

       Shortly before one o'clock in the early morning hours of August 13, 1987, Kathy Davis was preparing to leave the Pizza Hut at 787 North Redwood Road, where she was employed as manager. Her husband, John Davis, and her brother, Gerald Wilson, had come to visit her and accompany her home. As they left the building, they were accosted by a man wearing a white scarf across his face and carrying a metal pipe ("the pipe man"). He demanded that they give him the bank bag with the day's receipts. A brief scuffle ensued, during which the pipe man pushed Kathy inside her car. He then ordered her to return to the building to retrieve the bank bag. At some point in the scuffle, Wilson attempted to grapple with the robber. The robber hit Wilson with the pipe and then told a second robber ("the gunman") that if Wilson moved again, the gunman should kill him.

       This was the first indication that a second robber was present. Wilson testified that the gunman was crouched near the corner of the building, holding a gun. The man, who also wore a white scarf covering most of his face, held the gun on Wilson while Kathy and John went back into the building and brought the bank bag out to the robbers. Both robbers then fled. The victims reported the robbery to the police, who responded within a few minutes. The victims described the robbers to the police, but the descriptions were somewhat conflicting.

       A short time after the robbery, police officer Merrill Stuck was driving a marked police car northbound near 600 North and 1940 West. Officer Stuck had the headlights and radio turned off. He had not heard about the Pizza Hut robbery. As the darkened police car approached the intersection at 600 North, the officer saw two men walking south toward him. As the officer's car neared the two men, one ran east and disappeared from sight, while the other continued walking south. Officer Stuck turned on his radio and made a call, stating that he was going to stop someone and "shake them down." He then continued north to the intersection and stopped the man who had not run away, Livio Ramirez. Officer Stuck had not received any bulletins regarding the robbery or any other crimes that night, and he testified that Ramirez had done nothing to cause him to believe that Ramirez had committed a crime.

       Testimony about what happened next conflicts. Ramirez testified that Stuck emerged from his car with his hand on his gun and said, "Hold it." Ramirez testified that Stuck then handcuffed him. At that point, a second officer, Robert Rackley, arrived.

       Officer Stuck's testimony differed from Ramirez's testimony in several important aspects. Stuck's testimony at trial also contradicted his own testimony at the suppression hearing. At the suppression hearing, Stuck testified that when he encountered Ramirez, he only asked for identification, inquired why the other man had run away, and asked where Ramirez had been that night. Stuck testified that he did nothing to restrain Ramirez, but he also testified that it was "entirely possible" that he had ordered Ramirez to hold his hands up when first approaching him. Stuck said that after asking the question, he backed Ramirez up against a chain link fence. The record is unclear as to the degree to which Ramirez was physically constrained at that point. 1 Stuck testified that Officer Rackley

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arrived shortly thereafter. Stuck's testimony at trial was essentially the same as at the suppression hearing, except that he further testified that he had searched Ramirez by patting him down prior to Rackley's arrival.

       Rackley arrived a few minutes after Stuck stopped Ramirez. Rackley had heard Stuck's call about stopping a pedestrian. He also had received a bulletin about the Pizza Hut robbery, including descriptions of the robbers. Upon arriving, Rackley informed Stuck about the robbery and told him that Ramirez matched the description of a robbery suspect. Officers Rackley and Stuck searched Ramirez, and then Rackley handcuffed Ramirez to the fence by placing a second set of handcuffs through the fence and attaching them to the handcuffs Ramirez was wearing.

       In the meantime, other police officers had been talking to the robbery victims at Pizza Hut. When word came over the radio that Stuck and Rackley had detained a suspect, the police drove Kathy Davis, John Davis, and Gerald Wilson to where Ramirez was detained to determine whether they could identify him as one of the robbers. When testifying later, the witnesses were confused as to the order in which they were taken to identify Ramirez and which of them were transported to the scene together. It is also unclear from the record exactly what the police told the witnesses about the person they were about to see, beyond a statement to the effect that the officers had found someone who matched the description of one of the robbers.

       The identification showup then occurred under the following circumstances: It was approximately one o'clock in the morning. Ramirez, a dark-complexioned Apache Indian, was handcuffed to a chain link fence. He was the only suspect present and was surrounded by police officers. The police turned the headlights and spotlights from the police cars on Ramirez to provide enough light. The witnesses viewed Ramirez by looking at him from the back seat of a police car. Of the three witnesses, only Wilson identified Ramirez as the masked man with the gun; the other two witnesses were unable to identify him as one of the robbers. Following the identification, Ramirez was placed under arrest and was charged with the robbery.

       Prior to trial, the defense moved to suppress the out-of-court and in-court identifications by Wilson on grounds that the initial identification procedure gave rise to a substantial likelihood of irreparable misidentification and that the initial identification tainted subsequent identifications. Ramirez also moved to suppress all evidence seized from him, on grounds that the seizure violated his rights under the federal and state constitutions. The trial court denied the motion to suppress the identification, but took under advisement the motion to suppress based on unlawful stop and seizure. The trial judge never explicitly ruled on this pretrial motion.

       At trial, Wilson appeared and identified Ramirez as the gunman. The defense entered continuing objections to the admission of evidence based on claims of illegal stop and seizure and suggestive identification procedures. Following Ramirez's conviction, the defense moved for a new trial, renewing its objections to the stop and seizure and to the identification and also objecting to the prosecution's opening statement and closing argument. The trial court denied the motion on grounds that the pretrial motion to suppress was properly denied and that the prosecutor's statements, though inaccurate, were not of such magnitude as to mislead the jury.

       As noted, the record before us does not include an explicit ruling on the lawfulness of the stop and seizure. The trial court's minute entry denying the motion for a new trial reaffirms the court's earlier ruling refusing to suppress the evidence. The earlier ruling, however, does not state clearly whether the refusal to suppress is based only on a determination that the

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identification procedure was lawful or also on an unrecorded ruling on the lawfulness of the stop and seizure.

       Ramirez raises several issues on appeal. First, he claims that the introduction of the eyewitness identification violated his right to due process of law under article I, section 7 of the Utah Constitution and the fourteenth amendment to the United States Constitution because the identification was unreliable. Second, he claims that the stop violated article I, section 14 of the Utah Constitution and the fourth and fourteenth amendments to the United States Constitution because Officer Stuck did not have an articulable reason for making the stop. Third, he claims that the prosecutor's comments in his opening statement and closing argument prejudiced his right to a fair trial. Finally, he contends that the evidence presented at trial was insufficient to support a verdict of guilty.

       We begin with the identification issue. Article I, section 7 of the Utah Constitution provides, "No person shall be deprived of life, liberty or property, without due process of law." Utah Const. art. I, § 7. Ramirez contends that he was denied due process when the prosecution...

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