Mezquita v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Annabelle Clinton Imber
• Citation: Mezquita v. State, 125 S.W.3d 161, 354 Ark. 433 (Ark. 2003)
• Decision Date: 16 October 2003
• Docket Number: No. CR 03-017.,CR 03-017.
• Parties: Carlos MEZQUITA v. STATE of Arkansas.

125 S.W.3d 161

354 Ark. 433

Carlos MEZQUITA v. STATE of Arkansas.

No. CR 03-017.

Supreme Court of Arkansas.

October 16, 2003.

The Rogers Law Firm, P.A., by: Edmundo G. Rogers, Rogers, for appellant.

Mike Beebe, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., for appellee.

ANNABELLE CLINTON IMBER, Justice.

Appellant Carlos Mezquita, a foreign national from El Salvador, was convicted of rape in a bench trial held in Benton County on March 8, 2002. On appeal, he raises eight points of error. We find no error and affirm.

During the early-morning hours of November 19, 2000, Melissa Frank was the sole clerk on duty in an E-Z Mart convenience store, when a man entered the store and purchased a pack of Trident gum. A short time later, the same man returned and, after complaining about the price of the gum he had previously purchased, he bought a bottle of water before leaving the store. While Ms. Frank was sweeping the outside parking lot, she saw the man drive up to the store and enter a third time. Inside, he asked Ms. Frank to help him find something for an upset stomach. When he could not open the bottle of stomach medicine, Ms. Frank reached for the bottle lid to help, and the man attempted to kiss her. Ms. Frank resisted, at which time he forced her down a hallway to a small bathroom where he forcibly held her down and digitally raped her. Managing to struggle free, Ms. Frank kicked her attacker in the groin; he called her a "bitch" and fled the scene. Ms. Frank ran to the desk where she activated her panic button. She ran to the window and saw the man's vehicle, a blue-green Toyota, pulling out of the parking lot.

When the police arrived, Ms. Frank gave them the license tag of the vehicle, and said that she recognized the man and his vehicle because he had been to E-Z Mart on several prior occasions. Ms. Frank described the attacker as being a little taller than she was, of slender build, in his late teens or early twenties, with dark hair and eyes, Hispanic, and wearing a blue Tyson's "365-days" sweatshirt, a black jacket, dark baggy jeans, and a black Nike swoosh knit cap. Ms. Frank worked with Detective Michael Patten of the Rogers Police Department to create a computer-generated sketch of her attacker.

Detective Patten traced the license tag number Ms. Frank had given to a blue-green Toyota Camry owned by Ana and Carlos Mezquita. Det. Patten also pulled Mr. Mezquita's driver's license photo and noticed the photo bore a strong resemblance to the composite of the rapist. Det. Patten, along with Sergeant Jarod Mason and Patrolmen Nick Fisher and Brad Abercrombie, proceeded to the Mezquita apartment, where they found the Camry parked and Carlos Mezquita at home. The officers informed Mr. Mezquita that he did not have to talk to them and he was not under arrest, but that they would like to discuss his car and license tags. He agreed to speak to them outside to avoid waking his family.

Mr. Mezquita accompanied the four officers to Det. Patten's vehicle because it was very cold outside. Once inside the vehicle, Det. Patten again reminded Mr. Mezquita that he was not under arrest and did not have to speak with them. Mr. Mezquita denied being at the E-Z Mart that morning and claimed to have been home since 12:30 a.m. The officers took a Polaroid photograph of Mr. Mezquita after obtaining his permission, and then asked if they could speak to his wife. He agreed and remained in the patrol car with Fisher while Patten and Mason returned to the apartment. Ana Mezquita invited the officers inside the apartment, where she told them she had been fighting with her husband because he had not come home until 4:10 a.m. While talking with Ana in the living room, Sgt. Mason and Det. Patten noticed a black knit cap with the Nike "Swoosh" symbol on it, lying on a bar counter. On the bar beside the cap was a blue shirt that had a Tyson logo on the front, with the words "Safely Worked 365 Days" around the logo. The officers also noticed a package of Trident gum of the type and color described by the victim.

Det. Patten and Sgt. Mason left the apartment and told Mr. Mezquita he could go back inside. While Det. Patten waited in his car at the apartment complex, Sgt. Mason met with Ms. Frank and showed her a six-photo lineup that included the photograph of Mr. Mezquita. After looking at the photo lineup for a little over a minute, Ms. Frank said something about the clothes being different and was unable to identify Mr. Mezquita; instead, she pointed at a different photo, stating she was "not sure."

Sgt. Mason radioed Det. Patten with this information, at which point Det. Patten returned to Mr. Mezquita's apartment and asked him if he would be willing to come to the police station to answer some more questions. Det. Patten again told Mr. Mezquita that he was not under arrest and did not have to speak to them if he did not want to do so, but Mr. Mezquita agreed to come to the station. When asked if he wanted to follow the police car or ride with police, Mr. Mezquita asked if he could ride with Det. Patten because he could not find his wallet and driver's license. Mr. Mezquita sat in the front passenger seat on the ride to the station. During the ride, Mr. Mezquita disclosed to Det. Patten that he was from California, and the two men discussed California because Det. Patten had also lived there at one time.¹

While Mr. Mezquita rode to the station with Det. Patten, Sgt. Mason remained at the apartment and obtained Ana Mezquita's verbal and written consent to search the apartment, where he seized the Tyson shirt, Nike cap, and package of gum, along with a dark jacket and pair of dark pants that were similar to Ms. Frank's description of her attacker's clothing.

At the Rogers Police Department, Mr. Mezquita was interviewed in a Criminal Investigation Division (CID) interview room by Det. Patten. The detective again reminded Mr. Mezquita that he did not have to talk, then had him read and sign a Miranda Rights form that was written in both Spanish and English. During this interview, Mr. Mezquita contradicted his earlier statement and admitted that he had been in the E-Z Mart three times during the early morning. His statement mirrored Ms. Frank's statement in that he said he had purchased gum on the first visit, returned a second time to complain about not being given enough change for the gum and to buy a bottle of water, and then returned the third time to buy a bottle of Pepto-Bismol. His version, however, differed from Ms. Frank's statement in that he claimed to have only kissed Ms. Frank and denied any sexual contact with her. At the conclusion of his statement, Mr. Mezquita was placed under arrest by Det. Patten and transferred to another floor to be booked. Only then did Mr. Mezquita apparently inform police that he was from El Salvador.

Prior to trial, Mr. Mezquita moved to suppress his statements to police and the items seized from his apartment because police had not informed him of his right to contact his consulate pursuant to the Vienna Convention on Consular Relations (VCCR). The defense stipulated that Mr. Mezquita's Miranda warnings had been properly given and his constitutional rights had not been violated in either the interrogation or the search of his apartment, except as to his VCCR rights. The trial court held two hearings on the suppression motion. In the first hearing, the trial court determined that the Exclusionary Rule was not the proper remedy for a VCCR violation, even assuming that Mr. Mezquita was in custody at the time of the interview in the CID room. At the second hearing, the trial court heard testimony on the issue of whether or not Mr. Mezquita had been in custody at the time of the interview, and determined that, because he understood enough English to understand his Miranda rights, and because he had been repeatedly assured by the police that he did not have to speak, was not under arrest, and could leave at any time, Mr. Mezquita was not in custody at the time he made his statements.

At trial, Ms. Frank positively identified Mr. Mezquita as the man who had raped her, stating she was "100 percent" sure it was him. Though the trial court initially expressed concern that Ms. Frank had been unable to identify Mr. Mezquita in the photo array, after questioning Ms. Frank himself, the court allowed the in-court identification to stand. Mr. Mezquita was convicted of rape and was sentenced to twenty years in prison, plus an additional ten years' suspended imposition of sentence. He now appeals, raising eight points of error.

In-Court Identification

Mr. Mezquita first challenges the victim's in-court identification as violative of his Due Process rights because the victim was unable to identify him in a photographic lineup shortly after the rape; and, then at trial when she positively identified him, she told the trial court that she had first recognized him in a pretrial hearing. Mr. Mezquita asserts that it was this opportunity to view him at the pretrial hearing that impermissibly tainted her in-court identification.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). We will not reverse a trial court's ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). In determining whether an in-court identification is admissible, the court looks first at whether the pretrial identification procedure was unnecessarily suggestive or otherwise constitutionally suspect; and it is the appellant's burden to show that the pretrial identification is suspect. Id. Reliability is the linchpin in determining the admissibility of identification testimony....