State v. Leyvas

• Decision Date: 30 March 2009
• Docket Number: No. 2 CA-CR 2007-0340.,2 CA-CR 2007-0340.
• Citation: 221 Ariz. 181,211 P.3d 1165
• Parties: The STATE of Arizona, Appellee, v. Nathan Andres LEYVAS, Appellant.
• Court: Arizona Court of Appeals

211 P.3d 1165

221 Ariz. 181

The STATE of Arizona, Appellee, v. Nathan Andres LEYVAS, Appellant.

No. 2 CA-CR 2007-0340.

Court of Appeals of Arizona, Division 2, Department A.

March 30, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Scott A. Martin, Tucson, Attorneys for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, Nathan Leyvas was convicted of five counts of sexual assault sentenced him to consecutive and concurrent, presumptive prison terms totaling forty years. On appeal, Leyvas contends the court erred by allowing a witness to identify him at trial without first having held a Dessureault¹ hearing and by denying his motion for judgment of acquittal on the two attempted armed robbery charges. We affirm.

Background

¶ 2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App.1999). One evening in December 2006, the victims, two female college students, were walking in a Tucson city park when a man riding a bicycle threatened them with a gun and subsequently sexually assaulted both of them multiple times. At one point the women heard the man open a wrapper, possibly containing a condom.

¶ 3 After the assaults, the man asked if either woman had any money. They said no, and he then allowed them to walk away. When they realized he was no longer behind them, they ran to a convenience store and called 911. Police took the victims for medical examinations, but no male DNA² evidence was ever found. Both victims described their assailant as a skinny Hispanic male in his early twenties who was wearing a gray sweatshirt and gray beanie cap.

¶ 4 After Leyvas became a suspect, police searched his bedroom at his parent's house and found an air pistol, gray beanie, gray sweatshirt, and a condom. Police also searched his girlfriend's house and found the mountain bicycle that Leyvas had used on the night of the assaults.

¶ 5 Leyvas's defense at trial was mistaken identity. Neither of the two victims was able to positively identify him as the assailant.³ But a female jogger, M., who twice that night had passed by a man on a bicycle, identified Leyvas as the man she had seen at the park on the night of the crimes. A few weeks before trial, and about seven months after the crimes, a detective showed M. a six-person photographic lineup that included Leyvas's photograph. M. identified another man as the person she had seen at the park that night. In a subsequent pretrial interview the prosecutor told M. she had "identified the wrong person."

¶ 6 Before trial, citing only Dessureault, Leyvas moved to preclude M. from identifying him in court on the ground that any such identification would be tainted by the prosecutor's comment. After a brief discussion, and when Leyvas was unable to produce any "analogous" case law, the trial court determined Dessureault did not apply "to this fact situation" and allowed M. to identify Leyvas at trial. That identification occurred for the first time on redirect examination and then again in response to questions by the jury, when M. answered she was sure Leyvas was the man she had seen at the park. M. further testified she had "[n]ot [been] very confident at all" when she previously had identified a different man in the photographic lineup. She also identified the mountain bicycle found at Leyvas's girlfriend's house as the one she had seen the man riding at the park and testified that a recording of Leyvas's voice was consistent with the voice "tone range" of the man who had spoken to her while she jogged.

Discussion

I. In-court identification

¶ 7 Leyvas contends his due process rights were violated when the trial court allowed M. to identify him in court without first having held a Dessureault hearing to determine whether the pretrial identification procedure was unduly suggestive and, if so, whether that would taint any proposed in-court identification by M. He acknowledges that the pretrial photographic lineup, in which M. "identified a picture of another man," was not suggestive. Nonetheless, Leyvas argues, the prosecutor's later telling M. "she had chosen the wrong man's photo" "was sufficient to trigger the Dessureault paradigm," "requir[ing] the trial court to make an initial determination whether the pretrial identification circumstances were unduly suggestive."

¶ 8 The state argues, as it did below, that Dessureault does not apply because M. had failed to identify Leyvas in the pretrial photographic lineup. Similarly, in denying Leyvas's motion to preclude M. from identifying him at trial, the trial court accepted the state's argument that an allegedly "suggestive nonidentification" does not "fall[] under Dess[u]reault." We do not find Dessureault necessarily limited to situations in which an allegedly suggestive pretrial identification of the defendant has occurred. See State v. Myers, 117 Ariz. 79, 83-84, 570 P.2d 1252, 1256-57 (1977) (after hearing at which victim addressed circumstances surrounding his observation of offender at time of crime, victim's identification of defendant allowed at trial even though victim "had been unable to identify the defendant in a photo lineup or in a live lineup" before trial and had selected another person in the live lineup); cf. State v. Alexander, 108 Ariz. 556, 564, 503 P.2d 777, 785 (1972) (comments made to witnesses that they had "selected the wrong photo" in photographic lineup one of multiple, relevant factors contributing to finding of "illegal," unduly suggestive pretrial identification procedure; witnesses eventually identified defendant in second, pretrial photographic lineup, and Dessureault hearing held). But we find no reversible error under the particular circumstances of this case.

¶ 9 We review the trial court's denial of Leyvas's motion to preclude M.'s in-court identification for an abuse of discretion. See State v. Prion, 203 Ariz. 157, ¶ 14, 52 P.3d 189, 192 (2002). And, "[w]e review the fairness and reliability of a challenged identification for clear abuse of discretion." State v. Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d 1172, 1183 (2002). But we review de novo the question whether a common law procedural rule with constitutional underpinnings, such as that set forth in Dessureault, applies to a particular factual scenario. See State v. Newell, 212 Ariz. 389, ¶¶ 27-28, 132 P.3d 833, 841 (2006) (legal question whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), applies to specific facts of case reviewed de novo); State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App.2000) (due process claims reviewed de novo); cf. State v. Apelt, 176 Ariz. 349, 362, 861 P.2d 634, 647 (1993) ("We agree with the trial court that the identification in this case does not come within the ambit of Dessureault.").

¶ 10 "The criminal defendant's due process rights include the right to a fair identification procedure." State v. Nieto, 118 Ariz. 603, 605, 578 P.2d 1032, 1034 (App. 1978); see also State v. Bracy, 145 Ariz. 520, 530, 703 P.2d 464, 474 (1985). "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." Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183. Even when "a pretrial identification procedure is overly suggestive, however, [that] does not bar the admission of an identification." Id. "Instead, the question is whether the identification is reliable in spite of any suggestiveness." Id. "Thus, there is a two-part test for determining admissibility: (1) whether the method or procedure used [in the pretrial procedures] was unduly suggestive, and (2) even if unduly suggestive, whether it led to a substantial likelihood of misidentification, i.e., whether it was reliable." Id.; see also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

¶ 11 In Dessureault, about nine hours after an armed robbery, the victim/witness identified the defendant in a live lineup that included him and three others. 104 Ariz. at 382, 453 P.2d at 953. At trial, the victim again identified Dessureault as the robber. Id. Our supreme court determined that the pretrial identification procedure was unduly suggestive because Dessureault was the only person in the lineup who had a moustache and a beard, as had the robber. Id. at 383, 453 P.2d at 954. Under the circumstances, the court held that, "although the pretrial identification was unduly suggestive, the in-court identification had an independent source other than the lineup." Id. at 384, 453 P.2d at 955. Because the legally flawed pretrial identification "was not conducive to irreparable mistaken identification," and because the victim's "identification was positive and unequivocally made from the defendant's face," the court found no reversible error. Id. at 385, 453 P.2d at 956.

¶ 12 Referring to situations in which "pretrial identifications" of defendants have been made, id. at 383, 453 P.2d at 954, the court set forth the following "effective procedures at the trial court level":

First, if at the trial the proposed in-court identification is challenged, the trial judge must immediately hold a hearing in the absence of the jury to determine from clear and convincing evidence whether it contained unduly suggestive circumstances. In this the burden is on the prosecution to establish from all the circumstances surrounding the pretrial identification that it was not such as to be unduly suggestive.

Second, if the trial judge concludes that the circumstances of the pretrial identification were unduly suggestive or that the prosecution has failed to establish by clear and convincing evidence that they were not, then it is the...