State v. Hicks
| Decision Date | 16 July 1982 |
| Docket Number | No. 5121,5121 |
| Citation | 133 Ariz. 64,649 P.2d 267 |
| Parties | STATE of Arizona, Appellee, v. Ernest Floyd HICKS, Appellant. |
| Court | Arizona Supreme Court |
Richard Oseran, Pima County Public Defender by Barry J. Baker Sipe, Asst. Public Defender, Tucson, for appellant.
Appellant, Ernest Floyd Hicks, was convicted after trial by a jury of first degree murder. Appellant was sentenced to life imprisonment. This court has jurisdiction of this appeal pursuant to A.R.S. § 13-4031. We affirm.
The essential facts are that the appellant and the victim had both been drinking at the Club 37, a bar in Tucson. Both men were regular patrons of the tavern. At about 11:00 P.M. appellant left the bar and went outside. The bartender, seeing that appellant had left his coat, called after him. Appellant said he would return shortly for his coat.
A few minutes later, the victim left the bar. Mrs. Hatfield and Mrs. Cox, also bar patrons, left a few minutes after the victim's departure. As the women reached their car, they heard the sound of a shot and watched a man walk from the victim's dump truck carrying a long-barreled gun to appellant's car. The man put the gun in the open trunk, closed it and drove away.
The women alerted the occupants of the bar who found the victim in his truck, slumped forward in the driver's seat with a gunshot wound in the back of his head behind his left ear. The police were notified and appellant was arrested several minutes later at the nearby trailer of a friend, Cathy Barrow.
Appellant raises six issues on appeal:
(1) Did the police employ an unlawful procedure by producing appellant for identification at a one-man show-up?
(2) Should evidence of the victim's good character have been excluded?
(3) Did the introduction into evidence of two photographs of the victim constitute error?
(4) Did a witness' reference to appellant's "known fingerprints" amount to reversible error?
(5) Was appellant denied a fair trial by the preclusion of expert testimony concerning alcoholic black-outs?
(6) Was appellant denied his constitutional rights by the introduction of a statement he made while intoxicated?
Following his arrest, appellant was returned to the parking lot of Club 37. The two witnesses were brought individually to the squad car where appellant was being held. Police officers asked the witnesses to view the appellant to see whether he was the man they saw about an hour earlier walking from the victim's truck with a gun. One witness positively identified appellant as the man in the bar and the man with the gun in the parking lot. The other witness was unsure if he was the same man seen in the parking lot.
Appellant challenged the show-up procedure in a pretrial motion below and now raises the issue on appeal. The trial court denied the motion to suppress identification on the basis that no improper police conduct had been shown.
Recent cases have consistently held that a one-man show-up at the scene of the crime or near the time of the criminal act is permissible police procedure. State v. Nelson, 129 Ariz. 582, 633 P.2d 391 (1981); State v. Kelly, 123 Ariz. 24, 597 P.2d 177 (1979). Although suggestiveness is inherent in a one-man show-up, a show-up identification The factors used to determine whether an identification is reliable were adopted from Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). State v. Tresize, supra; State v. Trujillo, supra. They are: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at the identification; and (5) the length of time between the crime and the confrontation.
is admissible if the identification is reliable. State v. Tresize, 127 Ariz. 571, 623 P.2d 1 (1980); State v. Trujillo, 120 Ariz. 527, 587 P.2d 246 (1978).
The identifying witness had ample opportunity to view the man with the gun as he walked from the victim's truck, placed the shotgun in the trunk of a car and looked around before getting in the car. The parking lot was well lit. The witness stated that her attention had been drawn to the man by the sound of the shot, and she was intent upon watching him leave. The witness testified that she positively recognized the man with the gun to be the same man she had seen inside the Club 37 minutes before. She was positive in her identification of appellant in the squad car. The show-up confrontation occurred only about an hour after the crime and in the same place that the observations were originally made. In the totality of the circumstances, we find that the identification was reliable. There was no error in the trial court's refusal to suppress the evidence obtained at the show-up identification shortly after the murder.
The appellant claims that there was error in the admission of evidence showing the peacefulness of the victim. The state argues that objection to the evidence was waived and the defense raised the issue initially.
Defense counsel did remark to the jury in his opening statement that:
Cathy Barrow knew (the victim), had had problems with him in the past. He was a loudmouth. She characterized him as obnoxious, a cutting-type person.
The prosecution apparently sought to anticipate a defense of self-defense. The prosecutor asked four witnesses, all patrons or employees of the Club 37, whether the witnesses had ever seen the victim quarrel or engage in physical violence with anyone at the bar. Defense counsel allowed all but the third inquiry to pass without objection, and his relevancy objection to the third inquiry was overruled. All of the witnesses testified that they had never seen the victim become physically violent, and only one witness had seen him argue with people in the bar.
The defense counsel's objection to the testimony of the third witness concerning the character of the victim should have been sustained. Rule 404(a), Rules of Evidence, 17A A.R.S. sets forth the limited circumstances when the character of the victim is relevant. It provides in part:
Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor(.)
In the instant case, the defense had introduced no evidence of the victim's character for the state to rebut. Whatever the defense counsel had in mind by the reference to the victim's nature was never developed in the defense case. We do not believe this remark opened the door for the state to present evidence on the issue. The defense did not follow up with any evidence tending to support the remark in the opening statement. Self-defense was not raised at trial and there was no evidence that the victim was the first aggressor. We therefore hold The state urged that the defense waived its objection because on cross-examination, defense counsel asked the fourth witness whether she had ever seen the victim or the defendant fight or argue with anyone at the bar. The state contends that this question waived the previous objection. We disagree. Once an objection has been made and overruled, defense counsel must attempt as best he can to minimize any harm that might flow from the erroneous admission of unfavorable evidence. To do so by asking a question concerning the objected-to evidence does not thereby waive the objection. See State v. Noble, 126 Ariz. 41, 612 P.2d 497 (1980); State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980).
that it was error to permit the prosecution to present evidence of the victim's peaceful character.
Although the testimony was irrelevant and should have been excluded pursuant to rule 404(a), we do not believe that any prejudice to appellant resulted from admission of the testimony. The first two witnesses who testified on the issue did so without objection, so the evidence came before the jury in the first instance without defense objection. We do not believe that the additional evidence from the later witnesses caused any prejudice. In fact, defense counsel used the questioned evidence to appellant's advantage during closing argument. The state's argument, on the other hand, made no reference to the testimony. Furthermore, the testimony was not such that it was likely to evoke sympathy from the jurors.
Appellant challenges, on the same ground, the admission, over objection, of testimony by a homicide detective on redirect examination that he "found no evidence that anyone had a serious beef or anything with (the victim)." This statement followed vigorous cross-examination of the detective which elicited that no motive on the part of the appellant could be found. The prime thrust of appellant's defense was that somebody else killed the victim. Under these circumstances, the state could offer evidence in rebuttal to show that no motive for anyone else to kill the victim was uncovered. See State v. Hawkins, 260 N.W.2d 150 (Minn.1977); Kelly v. Commonwealth, 259 Ky. 770, 83 S.W.2d 489 (1935).
Appellant asserts that two color photographs of the victim's injury were improperly admitted in evidence because they were so gruesome as to inflame the passions of the jury. The first picture showed the victim as he was found in his truck, slumped forward with the gunshot wound behind his ear. The second picture, taken during the...
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