State v. Briseno
| Decision Date | 09 July 2013 |
| Docket Number | 1 CA-CR 11-0665 |
| Parties | STATE OF ARIZONA, Appellee, v. JESUS MANUEL BRISENO, Appellant. |
| Court | Court of Appeals of Arizona |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
The Honorable Michael D. Jones, Judge (Retired)
AFFIRMED
Criminal Appeals Section
And Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix
The Nolan Law Firm, P.L.L.C.
By Cari McConeghy Nolan
Attorneys for Appellant
Mesa
¶1 Jesus Manuel Briseno appeals his convictions for two counts of manslaughter, five counts of aggravated assault, and one count of endangerment arising from an automobile collisionin which two persons died and six others were injured. For the reasons that follow, we affirm.
¶2 The evidence at trial showed Briseno was driving a Cadillac Escalade north on Grand Avenue near 35th Avenue when he turned left against a red arrow, colliding with a car that was traveling through the intersection on a green light. Two of the occupants in the other car died, and four others were injured. The two passengers in Briseno's car also sustained injuries.
¶3 Testing revealed Briseno had a blood alcohol concentration of .138 approximately three hours after the collision. Although Briseno admitted to several police officers that he had been driving the Escalade, defense counsel argued at trial that the State had failed to prove Briseno was the driver.
¶4 The jury convicted Briseno of the charged offenses, and the trial court sentenced him to a total of 30.75 years in prison. Briseno filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) (West 2013),2 13-4031, and 13-4033(A).
¶5 Briseno argues the trial court abused its discretion when it denied his motions to strike the jury panel for taint during voir dire. He argues that two jurors tainted the jury pool by describing crimes committed against them or a relative for which the perpetrator was not held responsible, and then suggesting this case was not the same.
¶6 One prospective juror said her brother died sometime after an automobile collision in which the other driver was drunk, and in her opinion the other driver, who had wealthy relatives, "got away with murder because she wasn't held responsible." The prospective juror said that experience would not affect her ability to be fair in this case, however, because Another prospective juror said she was a victim of domestic violence, but police officers who were friends and relatives of the perpetrator protected him from prosecution. She said she believed she could be impartial, however, explaining that "there [are] good and bad people in every profession," and "I don't think it is the same as this."
¶7 The trial court denied Briseno's motion to strike thepanel for cause based on taint after each of these remarks. 3 The court subsequently advised the voir dire panel, however, that the court needed jurors who could be fair notwithstanding prior experiences, because "we can't afford to let Mr. Briseno be penalized because of some previous case where you think someone might have gotten off or gotten off easy." Later, the prosecutor asked the panel members if any of them who knew of someone who was not held accountable for a crime would use that experience in finding Briseno guilty or not guilty. No one responded.
¶8 We review a ruling on a motion to strike the jury panel for an abuse of discretion. State v. Glassel, 211 Ariz. 33, 45, ¶ 36, 116 P.3d 1193, 1205 (2005). The trial court has considerable discretion in evaluating claims that any remarks tainted the panel because that court is in the best position to assess the remarks' impact on the jury. State v. Doerr, 193 Ariz. 56, 62, ¶ 23, 969 P.2d 1168, 1174 (1998).
¶9 We find no abuse of discretion. Although an accused person has a constitutional right to be tried by a fair and impartial jury, he is not entitled to be tried by any one particular jury. State v. Greenawalt, 128 Ariz. 150, 167, 624 P.2d 828, 845 (1981). As the party challenging the panel,Briseno has the burden of showing that jurors could not be fair and impartial because they were tainted by the remarks of the other two jurors. See State v. Davis, 137 Ariz. 551, 558, 672 P.2d 480, 487 (App. 1983). We are not persuaded the comments at issue were so inflammatory or prejudicial as to have tainted the other members of the panel. Rather, the comments simply related the experiences each of the two prospective jurors had as victims of crimes, from their perspective. Their experiences were readily distinguishable from this case: one believed the perpetrator was protected from prosecution by wealthy relatives, and the other believed relatives and friends of the perpetrator who were policemen had protected him from prosecution. Each noted, however, that she believed this case was different, and one of them noted she assumed "the court system" would work to ensure that "what he did or did not do" would determine any responsibility borne by Briseno. Neither the details of these incidents nor the comments that this case would be different were so excessive as to prejudice or inflame the other jurors. Moreover, the court's subsequent admonition - that Briseno should not be penalized for anything the prospective jurors had personally experienced - minimized any conceivable prejudice, as evidenced by the failure of any prospective juror to acknowledge any such bias when the prosecutor asked the panel directly. Finally, there is nothing in the record to affirmatively showthat a fair and impartial jury was not secured, as is necessary for reversal. See Greenawalt, 128 Ariz. at 167, 624 P.2d at 845. We therefore decline to reverse on this basis.
¶10 Briseno next argues the trial court abused its discretion by denying his motion to preclude a pretrial identification of him as the driver of the Escalade because the identification was made from "an unduly suggestive and unreliable photographic line-up." Briseno argues that the fact his photo was lighter in tone or brightness than the rest of the photos rendered the photographic lineup unnecessarily suggestive, and the suggestive lineup was not overcome by the reliability of the identification. Following an evidentiary hearing, the court found the variance in lighting did not make the photographic lineup impermissibly suggestive, and it admitted evidence of the pretrial identification at trial.
¶11 "The Due Process Clause of the Fourteenth Amendment requires us to ensure that any pretrial identification procedures are conducted in a manner that is fundamentally fair and secures the suspect's right to a fair trial." State v. Lehr, 201 Ariz. 509, 520, ¶ 46, 38 P.3d 1172, 1183 (2002) (citation omitted), supplemented by 205 Ariz. 107, 67 P.3d 703 (2003). A defendant who challenges an unduly suggestive pretrial identification procedure is entitled to a hearing, atwhich the State is required to prove by clear and convincing evidence that the pretrial identification procedure was not unduly suggestive. See State v. Dessureault, 104 Ariz. 380, 384, 453 P.2d 951, 955 (1969). If the court determines the procedure was unduly suggestive, only then can it consider whether, under the totality of the circumstances, the identification was nevertheless reliable, i.e., it would not have led to a substantial likelihood of misidentification. See Lehr, 201 Ariz. at 520, ¶ 46, 38 P.3d at 1183.
¶12 In reviewing this claim of error, "we consider only the evidence presented at the suppression hearing and defer to the trial court's factual findings unless clearly erroneous." State v. Garcia, 224 Ariz. 1, 7, ¶ 6, 226 P.3d 370, 376 (2010) (citation omitted). We review de novo, however, the ultimate question of the constitutionality of a pretrial identification, which is a mixed question of law and fact. Id. at 7-8, ¶ 6, 226 P.3d at 376-77.
¶13 The trial court did not err in finding this lineup was not impermissibly suggestive. The detective who conducted the lineup testified at the Dessereault hearing that he had tried to make the photographs as similar as possible, but he had "never seen two pictures that are lighted [the same] or have the samecontrast."4 Although the headshot of Briseno was slightly lighter than those of the others in the lineup, such differences in lighting do not necessarily render a lineup unnecessarily suggestive. See State v. Phillips, 202 Ariz. 427, 433-34, ¶ 20, 46 P.3d 1048, 1054-55 (2002) , supplemented by 205 Ariz. 145, 67 P.3d 1228 (2003); see also State v. Gonzales, 181 Ariz. 502, 509, 892 P.2d 838, 845 (1995) ().
¶14 The law recognizes the composition of photographic lineups need not be perfect, and requires only "that they depict individuals who basically resemble one another such that the suspect's photograph does not stand out." Phillips, 202 Ariz. at 433, ¶ 20, 46 P.3d at 1054 (citation omitted). In this case, the persons depicted in the photographic lineup had similar facial characteristics, ethnicity, facial hair, and weight. All of the photographs appeared to have been taken from the same distance and angle, and each of the persons depicted had a...
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