State v. Harris

• Decision Date: 27 March 1975
• Docket Number: No. 2,CA-CR,2
• Citation: State v. Harris, 533 P.2d 569, 23 Ariz.App. 358 (Ariz. App. 1975)
• Parties: The STATE of Arizona, Appellee, v. Leon Henderson HARRIS, Appellant. 479.
• Court: Arizona Court of Appeals

Page 569

533 P.2d 569

23 Ariz.App. 358

The STATE of Arizona, Appellee, v. Leon Henderson HARRIS, Appellant.

No. 2 CA-CR 479.

Court of Appeals of Arizona, Division 2.

March 27, 1975.

Rehearing Denied April 29, 1975.

Review Denied June 10, 1975.

Bruce E. Babbitt, Atty. Gen. by Shirley H. Frondorf, Asst. Atty. Gen., Phoenix, for appellee.

John M. Neis, Pima County Public Defender by Frederic J. Dardis, Asst. Public Defender, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

Appeal is taken from the judgment finding defendant guilty of grand theft and ordering that he be incarcerated in the state prison for a period of not less than ten years nor more than ten years and one day.

On June 28, 1974, two young black men entered the Emmerich Jewelry Store and were waited on by Mrs. Emmerich. While the men were looking at jewelry, one of them asked Mrs. Emmerich for a drink of water. She left the sales area and returned less than a minute later with the water. After drinking the water, the men left. Later in the day, Mrs. Emmerich discovered that her wallet and six diamonds wrapped in diamond paper were missing from her purse which had been under a desk in the sales area. She had put the diamonds in her purse the previous day to show to a prospective buyer and had forgotten to return them to the safe. Six diamonds matching the description of those stolen were offered to a pawnbroker later in the day. At first he accepted them, and a pawn slip was filled out and signed by defendant. Then the pawnbroker recanted and refused to accept the gems.

After discovering that the diamonds were missing, Mrs. Emmerich recreated the day's events and decided that the only individuals in the store who were not regular customers were the two black men. She reported the crime to the police. In the course of the police investigation Mrs. Emmerich was shown three sets of photographic identifications: One was a group of six full-face photographs of young, black men out of which Mrs. Emmerich chose defendant as one of the thieves; the second was a color photograph of defendant taken shortly after he was arrested which she identified as the same man she had previously identified; the third photo line-up did not contain defendant's picture, and Mrs. Emmerich could not identify anyone in it.

On this appeal, defendant raises three issues: Whether the trial court erred in refusing to instruct the jury as required by State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969) cert. denied 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970); whether the court erred in failing to suppress the in-court identification of defendant; and whether certain testimony prejudicially conveyed to the jury the idea that defendant had a prior police record.

In Dessureault, our Supreme Court held:

'Third, if requested, the court must instruct the jury that before returning a verdict of guilty it must be satisfied beyond a reasonable doubt that the in-court identification was independent of the previous pretrial identification or if not derived from an independent source, it must find from other evidence in the case that the defendant is the guilty person beyond a reasonable doubt.' 104 Ariz. at 384, 453 P.2d at 955.

In the instant case, defendant requested such an instruction. The trial court refused to give it. The trial court's action was correct. The requirements of Dessureault are sequential; that is, after the court finds that the pretrial identification was unduly suggestive and that by clear and convincing evidence the in-court identification was not tainted, then, if requested, the court must give the above instruction. In State v. Stow, 109 Ariz. 282, 508 P.2d 1144 (1973), the court held that the failure to give the instruction was reversible error. The reason for that decision was that the pretrial identification was unduly suggestive; the witness was unable to identify the defendant at a pretrial identification, but after seeing the defendant Qua defendant at three preliminary hearings, he positively identified the defendant at trial. In the instant case, the judge did not make the initial ruling that is a prerequisite to giving the instruction. The judge found by clear and convincing evidence that the pretrial identification was not unduly suggestive. Therefore, he did not have to reach the question of whether the in-court identification was tainted nor did he have to give a Dessureault instruction.

Nor do we believe that the court must instruct the jury concerning identification procedures where the judge...