State v. Dixon

• Decision Date: 19 March 1987
• Docket Number: No. CR,CR
• Citation: 153 Ariz. 151,735 P.2d 761
• Parties: STATE of Arizona, Appellee, v. Clarence Wayne DIXON, Appellant. 86-0006-AP.
• Court: Arizona Supreme Court

Page 761

735 P.2d 761

153 Ariz. 151

STATE of Arizona, Appellee, v. Clarence Wayne DIXON, Appellant.

No. CR 86-0006-AP.

Supreme Court of Arizona,

In Banc.

March 19, 1987.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Janet Keating, Asst. Attys. Gen., Phoenix, for appellee.

John Ellis Ellsworth, Flagstaff, for appellant.

CAMERON, Justice.

Clarence Wayne Dixon, defendant, was convicted of aggravated assault, A.R.S. § 13-1204(A)(2), kidnapping, A.R.S. § 13-1304(A)(3), sexual abuse, A.R.S. § 13-1404, and four counts of sexual assault, A.R.S. § 13-1406, all dangerous offenses committed while on parole. A.R.S. § 13-708. Defendant was sentenced to life imprisonment on each count with the sentences to run consecutively. A.R.S. §§ 13-604(G), -604.02(A), -708. We have jurisdiction pursuant to Ariz. Const. art. XI, § 5(3) and A.R.S. §§ 13-4031, -4033, -4035.

The issues to be decided on review are

A. Was there probable cause to arrest the defendant?

B. Were the pretrial identifications of the defendant reliable?

C. Was the state's tracking witness qualified to testify as an expert?

D. Were seven consecutive life sentences

1. improperly imposed, or

2. unconstitutionally excessive?

On 10 June 1985, at approximately 10:30 a.m., defendant assaulted the victim in an area south of the Northern Arizona University (NAU) campus, in Flagstaff. The victim, a 20-year-old NAU student, was jogging on Lone Tree Road after it turned into a dirt road. Defendant came up from behind the victim and, threatening her with a knife, told her, "I'm gonna take you up there and fuck you and leave you there." Defendant dragged the victim off the road and into a secluded clearing in the forest. After tying her hands behind her with a rope, defendant undressed his victim and removed her running shoes. Defendant forced her to engage in numerous sexual acts, all of the time wielding the knife in one hand and threatening her.

Afterwards, defendant became remorseful and requested that the victim cut him, offering her the knife. The victim refused. Defendant, relenting on his earlier threat to leave the victim naked, returned her clothes and shoes, but promised that he would be out of town before she could report him to the police.

A. Probable Cause to Arrest

The victim returned to her NAU dorm where she was a resident assistant. The NAU police were called and the victim was taken to the Flagstaff Hospital where she received medical treatment.

The victim gave a description of her assailant to Officer Bolson of the NAU Police Department. Before noon, the police broadcast an "attempt to locate" call for a male Indian about six feet tall, thin build, with long, black hair in a ponytail, wearing blue Levi jeans, a tan tank top with horizontal stripes, blue tennis shoes with white stripes, and a pair of wire-rim glasses. The attempt to locate call indicated that the suspect had told the victim that he would be leaving the Flagstaff area immediately.

Officer Michael Terrin, of the Flagstaff Police Department, testified that he heard the attempt to locate call, including the description of the sexual assault suspect, where the assault occurred and the suspect's intention to leave Flagstaff immediately. Officer Terrin was patrolling an area near where the assault had occurred, Lone Tree Road and Interstate 40. Shortly after noon, he spotted defendant attempting to hitchhike, with a sign stating Albuquerque. Officer Terrin stopped and talked to defendant and, according to routine departmental procedure, filled out a field interview card. Defendant mentioned during the interview that he had been in the Arizona State Penitentiary. Officer Terrin radioed in for a more detailed description of the suspect. After confirming that the suspect had black hair to the middle of his back in a ponytail, wire-rim glasses and blue striped shoes, Officer Terrin arrested defendant.

This was a reasonable investigatory stop. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Winegar, 147 Ariz. 440, 446, 711 P.2d 579, 585 (1985) (CAMERON, J., specially concurring). We must, therefore, determine if there was probable cause to arrest.

Probable cause to arrest exists where the arresting officer has reasonably trustworthy information sufficient to lead a reasonable person to believe that an offense has been committed and that the person to be arrested committed it. State v. Nelson, 129 Ariz. 582, 586, 633 P.2d 391, 395 (1981). Only the probability and not a prima facie showing of criminal activity is the standard of probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). When assessing whether probable cause exists, "we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1888 (1949).

[P]robable cause ... is [a] reasonable ground of probability supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused guilty. 'Probable cause' or 'reason to believe', therefore, is like a third-quarter percentile: it is more information than would justify the officer in saying, 'From all the circumstances I suspect this man'; but it need not be such information as would justify the officer in saying, 'From all the circumstances, I know this is the man'.

Monroe v. Pape, 221 F.Supp. 635, 642-43 (N.D.Ill.1963) (footnote omitted).

In the instant case, Officer Terrin had sufficient information to believe a rape had been committed and that defendant had committed it. Defendant closely matched the victim's description, except for his T-shirt which was white and a four-inch difference in height. After stopping defendant, Officer Terrin confirmed by police radio that the suspect's ponytail reached the middle of his back and that he was wearing blue running shoes with white stripes and dark wire-rim glasses, all of which matched the defendant. Additionally, Officer Terrin knew that the crime had been committed nearby and that defendant was attempting to leave Flagstaff. Indeed, under these circumstances, Officer Terrin justifiably could have been criticized had he left defendant on the highway to hitchhike out of town. Defendant's fourth amendment rights were not violated by his arrest. The trial court was correct in denying defendant's motion to suppress evidence gained as a result of his arrest.

B. Pretrial Identification Procedures

Following defendant's arrest, the police transported him directly to the Flagstaff Hospital parking lot. After taking a Polaroid photograph of defendant, the police compiled a photographic lineup.

Officer John Bolson of the NAU Police Department created and showed the photographic lineup to the victim. Officer Bolson testified that the victim, without hesitation, pointed to the photograph of the defendant, remarking "That's him, but he's changed his clothes." Police then positioned the defendant in the parking lot so that the victim could view him through a hospital window. The victim again identified defendant as her assailant. Defendant was standing in the parking lot with two police officers, one in uniform. The victim also identified the defendant at the trial.

Defendant first contends that the photographic lineup was unnecessarily suggestive because only he had hair long enough to wear in a pony tail and only he was wearing glasses with lenses so dark that his eyes could not be seen. Furthermore, defendant contends, the victim's viewing him alone in the company of two police officers shortly after identifying his photo in the line-up is not only unnecessarily suggestive but unreliable. We do not agree.

To determine whether a defendant has been denied due process of law because of a pretrial identification procedure, the trial court must first determine whether the pretrial identification procedure was unnecessarily suggestive. If suggestive, then the court must examine the totality of the circumstances surrounding the identification in order to determine the reliability of the identification. Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S.Ct. 2243, 2253-54, 53 L.Ed.2d 140, 154-55 (1977); Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972); State v. Chapple, 135 Ariz. 281, 286, 660 P.2d 1208, 1213 (1983).

A photographic lineup is not unduly suggestive due to subtle differences in the photographs. State v. Via, 146 Ariz. 108, 119, 704 P.2d 238, 249 (1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1268, 89 L.Ed.2d 577 (1986). "Lineups need not and usually cannot be ideally constituted. Rather, the law only requires that they depict individuals who basically resemble one another such that the suspect's photograph does not stand out." State v. Alvarez, 145 Ariz. 370, 373, 701 P.2d 1178, 1181 (1985) (citations omitted).

After examining all of the photographs, we do not believe that defendant's photograph stands out. Admittedly, there are subtle differences between defendant's photograph and the others, as there are between the other photographs. The six photographs depict six Indian males of similar ages. Four of the men are wearing glasses, two pairs have metal frames, two have plastic frames. All of the lenses of the glasses appear tinted; defendant's are the darkest. All of the men have dark brown to black hair. Although several of the men have obviously short-cut hairstyles, the length of hair on three of the men is not readily evident. Furthermore, the defendant's ponytail does not appear in the photo. The respective heights of the men cannot be determined from their photos. We do not find the photo line-up suggestive.

Neither do w...