State v. Hooper

• Decision Date: 10 June 1985
• Docket Number: No. 5810,5810
• Citation: State v. Hooper, 145 Ariz. 538, 703 P.2d 482 (Ariz. 1985)
• Parties: STATE of Arizona, Appellee, v. Murray HOOPER, Appellant,
• Court: Arizona Supreme Court

Page 482

703 P.2d 482

145 Ariz. 538

STATE of Arizona, Appellee, v.Murray HOOPER, Appellant,

No. 5810.

Supreme Court of Arizona, In Banc.

June 10, 1985.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.

H. Allen Gerhardt, Jr., Mesa, Ross P. Lee, Maricopa County Public Defender, Phoenix, for appellant.

GORDON, Vice Chief Justice:

On December 24, 1982 a jury found defendant, Murray Hooper, guilty of one count of conspiracy to commit first degree murder, two counts of first degree murder, one count of attempted first degree murder, three counts of kidnapping, three counts of armed robbery, and one count of first degree burglary.

Defendant was subsequently sentenced to death for each count of first degree murder, to life imprisonment for conspiracy to commit first degree murder, and to approximately 140 years for the other crimes.This Court has jurisdiction under Ariz. Const. art. 6, § 5 (3)andA.R.S. § 13-4031.We affirm the convictions and sentences.

Defendant was tried jointly with William Bracy.The facts in Hooper's case are identical to those in State v. Bracy, 145 Ariz. 520, 703 P.2d 464(1985), and they need not be repeated here.

Furthermore, with the few exceptions discussed below, Hooper raises the same issues as does Bracy.As we have disposed of these issues in Bracy's case, we need not consider them again except to say that we find no reversible error.

RESTRAINING OF DEFENDANT

Defendant argues that the trial court committed reversible error in requiring him to be restrained during trial.Fearing the jury would see the shackles, defendant chose to waive his presence during jury voir dire.He maintains that the trial court's actions denied him his right to be present under Ariz. Const. art. 2, § 24.

Whether a defendant will be shackled is within the sound discretion of the trial court.State v. Stewart, 139 Ariz. 50, 676 P.2d 1108(1984);State v. Reid, 114 Ariz. 16, 559 P.2d 136(1976).Further when a defendant objects to being shackled during trial, there must be support in the record for the trial court's decision.State v. Stewart, supra.

The trial court did not abuse its discretion in ordering defendant shackled.The record revealed that defendant was under three death sentences in Illinois arising from the same triple murder for which defendant Bracy received death sentences in Illinois.Though Hooper, unlike Bracy, had no prior escape convictions, the mere absence of escape convictions does not mean a defendant must be free of restraints during a trial.Escape convictions are one factor a trial court may consider along with prior felony convictions for crimes of violence.State v. Stewart, supra;State v. Johnson, 122 Ariz. 260, 594 P.2d 514(1979).

In the instant case, the trial court took extensive precautions to assure defendant's restraints would not be visible to the jury.SeeState v. McMurtrey, 136 Ariz. 93, 664 P.2d 637, cert. denied, 464 U.S. 858, 104 S.Ct. 180, 78 L.Ed.2d 161(1983)(appellate court will not find error on ground that defendant shackled unless it is shown jury saw shackles).In view of defendant's background, we do not think the trial court abused its discretion in ordering defendant to wear restraints the jury could not see.Thus, as defendant was properly restrained, he was not denied his right to be present when he voluntarily chose to be absent during voir dire.

PRETRIAL IDENTIFICATION

Defendant next submits that the trial court committed reversible error in determining that the pre-trial identification of defendant by Marilyn Redmond was not unduly suggestive under 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).The fairness and reliability of a challenged identification are preliminary matters for the trial court whose findings will not be overturned on appeal absent a showing of clear and manifest error.State v. Schilleman, 125 Ariz. 294, 609 P.2d 564(1980);State v. McGill, 119 Ariz. 329, 580 P.2d 1183(1978).We find no abuse of discretion.

First, the lineup was not suggestive.Nothing in the lineup singles out defendant.Although some age disparity exists among the participants, this difference is not so great as to be suggestive.In addition, while all the participants are not the same height, the height difference is not extraordinary among any of the participants.The difference certainly does not single out defendant.Moreover that defendant was the only person in the lineup with his shirt tail untucked is in no way suggestive.Other lineup participants had unique items of clothing.Thus, this lineup was not suggestive.SeeState v. Dessureault, supra.

Furthermore, even if the lineup procedure was unduly suggestive, it was nonetheless admissible if the witness' identification was reliable.Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140(1977);State v. McCall, 139 Ariz. 147, 677 P.2d 920, cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375(1983).Reliability is determined by considering the factors set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401(1972).SeeState v. Bracy, supra(factors listed).Applying these factors, we find the pretrial identification reliable.

First, Mrs. Redmond had ample opportunity to observe defendant at the time of the crime.She first saw defendant in the well-lighted bedroom after Bracy had led her there.Defendant spoke to her, asking if there were any guns in the house, and he grabbed her and led her down a hallway to where the guns were kept.The hallway was also well lighted and defendant's face was no more than a foot away from Mrs. Redmond's face.

Second, Mrs. Redmond had a high level of attention.Though frightened to a certain degree, Mrs. Redmond said she was paying attention to the faces of all three intruders in her house.She was not just a casual observer of defendant, but rather her attention was focused on the suspect.SeeState v. Ware, 113 Ariz. 337, 554 P.2d 1264(1976).

The accuracy of Mrs. Redmond's description was hotly contested at trial, with the defense arguing that Mrs. Redmond's first description of her assailants indicated that three black men, two of whom were masked, were the murderers.Regarding the reference to three black males, we believe the evidence shows that, at the scene, Mrs. Redmond initially said that all three men were black but that she corrected herself, saying, "no, one was white."The record supports the inference that this discrepancy was caused by difficulties Mrs. Redmond had in communicating immediately following the gunshot wound to her head.

Concerning the masks, it appears by some accounts that Mrs. Redmond initially stated that one or two of the assailants wore masks.Other testimony, however, indicated that Mrs. Redmond never mentioned masks immediately following the crime.Mrs. Redmond herself never recalled mentioning masks, and her testimony indicated that none of the intruders had masks on.Her other initial descriptions of the two black men were not particularly detailed.Examining the totality of the circumstances regarding this factor, we do not find the discrepancies in the description to be per se unreliable.Mrs. Redmond exhibited a high level of certainty at the time of the pre-trial confrontation.After having viewed Bracy's lineup for the first time, Mrs. Redmond re-entered the viewing room and viewed Hooper's lineup.She then left the room, went to another office, and stated that she was positive the person occupying the third spot in the lineup, defendant, was the assailant.Her level of certainty is highly indicative of reliability.

Mrs. Redmond's identification of defendant came fifty-three days after the crime.Whether the length of time between the crime and the pretrial identification is too long depends upon the facts of each case; there is no per se rule.SeeState v. Strickland, 113 Ariz. 445, 556 P.2d 320(1976)(ten days too long where witness saw attacker for very brief moment and at a point in time where she had no discernible interest in remembering what perpetrator looked like);State v. McCall, supra(fourteen days not too long where victim had ample opportunity to observe attacker at time of crime and where victim gave detailed description of attacker).In the instant case, in light of Mrs. Redmond's ample opportunity to observe defendant at the time of the crime, her high level of attention at the time of the crime, and her good level of certainty at the lineup, Mrs. Redmond's identification of defendant fifty-three days after the crime was not unreliable.

Based upon the foregoing factors, we find no error in admitting evidence of Mrs. Redmond's pretrial identification of defendant.

ALLEGED DENIAL OF DEFENDANT'S RIGHT TO BE PRESENT

Defendant next argues that he was denied his constitutional right to be present when the trial court entered an ex parte order in regard to the trial.

Though under both the Federal and Arizona constitutions a defendant has a right to be present at every stage of his trial, this right applies only to those proceedings in open court where his presence has a reasonably substantial relation to the fullness of his opportunity to defend against the charge.State v. Christensen, 129 Ariz. 32, 628 P.2d 580(1981).

In the instant case, the trial court entered an order allowing witnesses subject to the rule of exclusion in defendant's trial to speak with a special prosecutor regarding contempt proceedings against Mr. Brownlee, Mr. Jones and Mr. Ryan.Defendant failed to object to this order at trial and now fails to cite any authority for his argument that he had a right to be present when the trial court made the order.In this instance, we find defendant had no constitutional right to be present when the trial court made this order.

IMPEACHMENT OF A DEFENSE WITNESS

Defenda...