State v. Hawkins

Decision Date06 September 2017
Docket NumberNo. 2 CA-CR 2016-0295,2 CA-CR 2016-0295
CourtArizona Court of Appeals



See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20112894002

The Honorable Jose H. Robles, Judge Pro Tempore



Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel, Phoenix

By Mariette S. Ambri, Assistant Attorney General, Tucson

Counsel for Appellee

Joel Feinman, Pima County Public Defender

By Michael J. Miller, Assistant Public Defender, Tucson

Counsel for Appellant


Presiding Judge Vásquez authored the decision of the Court, in which Judge Eppich and Judge Howard1 concurred.

VÁSQUEZ, Presiding Judge:

¶1 Following a jury trial, Mario Hawkins was convicted of armed robbery, aggravated robbery, and attempted robbery. On appeal, he argues the trial court erred by failing to suppress text messages downloaded from his cell phone and in failing to preclude the victim's out-of-court identification. Because we find no error, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Smith, 242 Ariz. 98, ¶ 2, 393 P.3d 159, 161 (App. 2017). On August 2, 2011, A.N. responded to an internet sales ad purporting to sell an iPhone. He called the cell phone number listed in the ad—which belonged to Hawkins—and arranged to meet the seller at the Pima Community College (PCC) campus that evening.

¶3 A.N. had been waiting in his car when Arvin Williams, the purported seller, parked nearby in a red car. A.N. asked to see the phone, and Williams handed him an empty iPhone box. When A.N. asked about the empty box, Williams told A.N. to wait and began rummaging through the back of the car. Hawkins then approached A.N. from another area of the parking lot, pointed a gun at him, and demanded A.N. give him "the money." After A.N. handed over the cash that he had, Hawkins got into the car with Williams and the two men drove away.

¶4 About two weeks later, A.N. saw another internet posting for the sale of an iPhone that was "[v]ery similar" to the one he had responded to on August 2. He replied and was again provided Hawkins's phone number. A.N. then contacted the PCC police department and met with a detective the next day, on August 17. Working with that detective, A.N. contacted Hawkins, and they agreed to meet at a baseball field at PCC for the sale. At the arranged time, PCC officers located Hawkins, who "matched the description," at the baseball field with an empty iPhone box. He was "the only person in the area." Williams subsequently was found nearby, sitting in a red car with a license plate bearing the partial information previously provided by A.N.

¶5 A grand jury indicted Hawkins for armed robbery, aggravated robbery, attempted robbery, and attempted aggravated robbery, and he was tried in absentia when he failed to appear at trial. The trial court granted Hawkins's motion for a judgment of acquittal on the attempted aggravated robbery charge, and the jury found him guilty of the remaining charges. The court sentenced him to concurrent terms of imprisonment, the longest of which is seven years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).2

Text Messages

¶6 Hawkins first argues the trial court erred by denying his motion to preclude text messages retrieved from his cell phone. He argues the state's failure to disclose before trial that text messageswere among the items downloaded from his cell phone should have resulted in suppression of the evidence. We review a court's ruling on discovery and disclosure matters for an abuse of discretion. State v. Bernini, 220 Ariz. 536, ¶ 7, 207 P.3d 789, 791 (App. 2009).

¶7 At the start of the second day of trial, Hawkins moved to preclude the state from introducing text messages and photographs retrieved from Hawkins's cell phone because the state had failed to disclose that it had obtained a search warrant for the phone and had downloaded its contents.3 The text messages show the August 17 exchanges between A.N. and Hawkins arranging the sale of an "iPhone 4" at the PCC west campus baseball field that evening and updating one another on their location. After hearing arguments, the trial court precluded a photograph downloaded from the phone, but otherwise denied Hawkins's motion.

¶8 Hawkins argues the state violated Rule 15.1, Ariz. R. Crim. P., and the trial court should have precluded the text messages as a sanction. See Ariz. R. Crim. P. 15.7. In response, the state asserts that seven months before trial Hawkins was informed that "the [s]tate had obtained photographs from an iPhone 3, and [Hawkins] was well aware that his iPhone had been seized by police." The state argues notice was sufficient, "[t]herefore, no material disclosure violation occurred, even assuming a technical violation."

¶9 We need not decide whether the state properly disclosed the existence of the text messages because we review the trial court's decision to admit them for harmless error. See State v. Poyson, 198 Ariz. 70, ¶ 21, 7 P.3d 79, 86 (2000). An error is harmless if we can say, "beyond a reasonable doubt, that it did not contribute to or affect the verdict." Id. When overwhelming evidence of the defendant's guiltis presented, the erroneous admission of evidence is harmless. See State v. Romero, 240 Ariz. 503, ¶ 9, 381 P.3d 297, 302 (App. 2016); see also Poyson, 198 Ariz. 70, ¶ 22, 7 P.3d at 86-87.

¶10 In this case, as noted above, there was overwhelming evidence of guilt. Given the striking similarities between the two incidents, it is inconceivable that the two individuals apprehended on August 17 were not the same two persons who committed the offenses on August 2. Notably, the phone number given to A.N. in connection with both sales matched the number for the cell phone Hawkins had with him when PCC officers arrested him. And the same phone was also linked to the email address that had been used to set up the August 2 sales ad. The username portion of that email address was "mrhawkins08."

¶11 Based on this evidence, we conclude, beyond a reasonable doubt, the admission of the text messages arranging the August 17 meeting did not contribute to or affect the verdict. See Poyson, 198 Ariz. 70, ¶ 21, 7 P.3d at 86. The remaining evidence overwhelmingly demonstrates Hawkins's guilt and therefore any error in the admission of the text messages was harmless. See id.; see also Romero, 240 Ariz. 503, ¶ 9, 381 P.3d at 302.

¶12 Hawkins argues, however, the admission of the text messages prejudiced him because they bolstered A.N.'s credibility, when his testimony was otherwise "unreliable." Hawkins reasons the messages provided "confirmation . . . that [his] phone had been use[d] during the August 17 events[, which then] supported the identification of [him] as involved in the August 2 events," and "the August 2 events were evidence that [he] was intent on robbing [A.N.] rather than selling the iPhone." He thus appears to suggest that had the jury not seen the messages, it would have rejected A.N.'s testimony about the August 17 event, which would have led the jurors to similarly reject his testimony about the August 2 events.

¶13 We find this argument unpersuasive. The detective also testified that he observed A.N. texting the number matching Hawkins's cell phone to arrange the time and place to meet for the sale, thus making the actual text messages cumulative. See State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) ("[E]rroneousadmission of evidence which was entirely cumulative constitute[s] harmless error."). Additionally, the argument ignores the overwhelming evidence, as already described above, that demonstrated Hawkins's guilt.

Pretrial Identification

¶14 Hawkins next argues the trial court erred by denying his motion to preclude A.N.'s pretrial identification of Hawkins. He contends the identification was unduly suggestive because it was a "one-person show-up." We review a court's ruling on a pretrial identification for an abuse of discretion, deferring to its "factual findings that are supported by the record and are not clearly erroneous." State v. Moore, 222 Ariz. 1, ¶ 17, 213 P.3d 150, 156 (2009). "The ultimate question of the constitutionality of a pretrial identification is, however, a mixed question of law and fact," which we review de novo. Id. We only consider the evidence presented at the suppression hearing. Id.

¶15 "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, ¶ 46, 38 P.3d 1172, 1183 (2002). "Unduly suggestive pretrial procedures may unfairly cause a witness to misidentify the defendant, and then to repeat the misidentification at trial." State v. Osorio, 187 Ariz. 579, 581, 931 P.2d 1089, 1091 (App. 1996), quoting State v. Smith, 146 Ariz. 491, 496, 707 P.2d 289, 294 (1985). If the trial court determines the pretrial identification was not unduly suggestive, then it does not need to further determine whether the identification was nonetheless reliable. State v. Leyvas, 221 Ariz. 181, ¶ 13, 211 P.3d 1165, 1169-70 (App. 2009). The state bears the burden of showing the pretrial identification was not unduly suggestive by clear and convincing evidence. Smith, 146 Ariz. at 496, 707 P.2d at 294.

¶16 Several days after the August 2 incident, police officers showed A.N. between six and ten photographs of possible suspects matching the description A.N. had provided. A.N. stated he did not recognize anyone in the photographs and, indeed, none of the photographs was of Hawkins or Williams. On August...

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