State v. Burton, 6135

• Decision Date: 26 March 1985
• Docket Number: No. 6135,6135
• Citation: 144 Ariz. 248,697 P.2d 331
• Parties: STATE of Arizona, Appellee, v. Gary Lynn BURTON, Appellant.
• Court: Arizona Supreme Court

Page 331

697 P.2d 331

144 Ariz. 248

STATE of Arizona, Appellee, v. Gary Lynn BURTON, Appellant.

No. 6135.

Supreme Court of Arizona, In Banc.

March 26, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Linda A. Akers and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Bruce A. Burke, Tucson, for appellant.

HAYS, Justice.

A jury found appellant, Gary Lynn Burton, guilty of armed robbery and aggravated assault. Burton had been previously convicted of four other felonies: attempted second-degree burglary, grand theft, and robbery two times. Appellant was on parole at the time the present offenses were committed. He was sentenced to two terms of life imprisonment pursuant to A.R.S. § 13-604.01(A) (offenses committed while released from confinement) and appealed. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031 (right of appeal). We affirm.

Appellant raises three issues on appeal:

I. Did the state's presentation of evidence from an unduly suggestive photographic lineup violate the trial judge's order or constitute fundamental error?

II. Was there sufficient evidence to support the appellant's conviction?

III. Are appellant's sentences to be served consecutively or concurrently?

FACTS

On the evening of May 31, 1983 a Revco drugstore in Tucson was robbed. Initially, the robber entered the store, purchased a package of Clorets mints, and departed. About 10 to 15 minutes later, when the store was less crowded, the same man returned. This time he selected a package of Clorets gum and brought it to the counter. The clerk, Maria Saucedo, jokingly remarked to the man that he had just purchased some breath mints. The man replied that the gum was for a friend. As Saucedo was about to give him his change, the man demanded money. Saucedo asked him if he was joking. The man drew a .44- or .45-caliber pistol and pointed it at Saucedo. He told her that he knew how to use the weapon but would prefer not to hurt her. Saucedo handed over a sum of money which the robber stuffed into his pants pocket. He then fled from the store, leaving the package of Clorets gum on the counter. The store manager called the police.

Saucedo told the police that the robber was an attractive 25- to 28-year old male, weighing between 155 to 175 pounds and that he was 5'10"' to 5'11"' tall with straight, shoulder-length blond hair, a beard and mustache. The police made a composite likeness from this description. Three fingerprints were lifted off the package of Clorets gum that was left on the counter. These fingerprints were later identified as belonging to appellant. The composite resembled Burton's driver's license photograph.

On June 25, 1983 the police arrested Burton. He was living at his mother's home, located approximately four blocks from the drugstore. At the time of his arrest, appellant resembled the description Saucedo gave the police, except that he no longer had a beard. On June 28, 1983, Detective James Gerretti showed Saucedo a photographic lineup. The lineup consisted of photographs of six males, all closely resembling the description Saucedo gave the police. Burton, without a beard, appeared in photograph # 3.

Saucedo was unable to identify the robber from the lineup. She told Detective Gerretti that the robber had brown eyes; all the men in the lineup, however, including Burton, had blue eyes. Gerretti asked her to take a second look at the photographs, disregarding eye color. Saucedo was still unable to identify any of the men as the robber. At this point, Gerretti told Saucedo that fingerprints from the individual depicted in photograph # 3 were found on the package of gum left by the robber. Saucedo then commented that the men in photographs # 3 and # 5 looked familiar. She stated, however, that she was unable to say that either of these men was the robber.

At trial, Burton's counsel argued that although his client's fingerprints were found on the package of gum, Burton was not involved in the robbery.

THE PHOTOGRAPHIC LINEUP

Before trial, appellant's counsel moved to suppress any in-court identification of appellant. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), supplemented by 104 Ariz. 439, 454 P.2d 981 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). He argued that Gerretti predisposed Saucedo to believe Burton was the robber by telling her that appellant's fingerprints were found on the gum package. Appellant argued, therefore, that all of Saucedo's testimony, including her in-court identification, should have been suppressed. The prosecution conceded that the lineup procedure was tainted and agreed that any in-court identification could be suppressed but disputed that Saucedo's testimony should be excluded in its entirety.

The trial judge precluded the state from eliciting an in-court identification, but her order was unclear as to whether the state could elicit testimony concerning the unsuccessful lineup and Saucedo's reactions to it.

During trial, no in-court identification of Burton occurred. The state, however, questioned both Detective Gerretti and Saucedo about the lineup. Neither the trial judge nor appellant's counsel objected during this questioning. Absent fundamental error, objection for the first time on appeal is generally waived. State v. Routhier, 137 Ariz. 90, 95, 669 P.2d 68, 73 (1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984). However, where a motion in limine is made and ruled upon, the objection raised in that motion is preserved for appeal, despite the absence of a specific objection at trial. State v. Lujan, 136 Ariz. 326, 328, 666 P.2d 71, 73 (1983).

Appellant contends that the prosecution willfully violated the trial judge's order by adducing testimony about the lineup and that this constituted fundamental error. We disagree.

The trial judge's order, limiting questioning of witnesses about the lineup, was unclear. During the pretrial hearing the trial judge stated:

THE COURT: So I won't grant the motion in limited fashion. It is ordered that the victim not be permitted or--be precluded from any in-court identification of the defendant.

The victim may testify about other matters concerning the alleged offense, and she may testify--and she may--and she may also testify as to matters that she told the police or the investigating officers immediately after the alleged offense took place, and before there were any--

MS. HANNAH: Your Honor, I think they could use her statement that she made, but she can [sic] sit in the courtroom and look at my client and start describing him.

THE COURT: No. She can testify to anything she made a statement to. I think she can testify to in open court. I don't think the state is limited to using out of court things she said. I think she can testify in court. The only thing she cannot testify to is--would be to identify him in open court; and if in fact she makes different statements in court from the one she made in the police department, I think you may have some impeachment testimony there.

Did I complete the last sentence?

And before she was shown a photographic lineup. Any statements that she made before she was shown a photographic lineup, she can be questioned about.

Neither in this oral ruling nor in the corresponding minute entry did the trial judge address the specific issue of whether the state could question Saucedo or Gerretti about the lineup. The ruling, however, seems to go both directions. For example, Saucedo was shown the photographic lineup at the police department. Arguably, the court's ruling allowed the introduction of statements made "in the police department." Similarly, the trial judge said, "She can testify to anything she made a statement to." "The only thing she cannot testify to is--would be to identify him in open court; ..." Because of these potential ambiguities, we decline to hold that the prosecution willfully violated the trial judge's order.

Appellant contends that he was denied his constitutional right to due process and a fair trial when this lineup evidence was admitted. U.S. Const. amend. XIV, § 1. According to appellant, its admission was fundamental error.

Fundamental error is error that goes to the foundation of the case or takes from the defendant a right essential to his defense. State v. Wussler, 139 Ariz. 428, 430, 679 P.2d 74, 76 (1984). Constitutional error is one form of fundamental error. When constitutional error occurs, an appellate court must determine, beyond a reasonable doubt, whether the error influenced the jury's verdict. State v. Montes, 136 Ariz. 491, 497, 667 P.2d 191, 193 (1983). "The question is whether the appellate court can say beyond a reasonable doubt that the jury would have found the defendant guilty without the evidence." Id.

Assuming without deciding that admission of the lineup testimony was constitutional error, cf. Neil v. Biggers, 409 U.S. 188, 198-99, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401, 410-11 (1972); Gilbert v. California, supra, 388 U.S. at 272-73, 87 S.Ct. at 1956-57, 18 L.Ed.2d at 1186-87 (1967), we hold that its admission was harmless and did not contribute to the jury's guilty verdict.

The testimony about the photographic lineup tended to exonerate the appellant. Detective Gerretti testified:

A. She looked at it [the photographic lineup] for approximately 45 seconds, and she indicated to me that no one in the photographic lineup was the person who robbed her.

I then asked her if she was sure. She stated, yes, she was sure because no one in the lineup had brown eyes.

I then asked her to forget about the eye coloring, and just look at faces, and to view the lineup one more time.

She looked at the lineup for several--well, 10 to 15 seconds again, and one time she indicated to me that no one in that lineup was the person who robbed her.

Q. Did she indicate to you whether...