State v. Lobato

• Court: Arizona Court of Appeals
• Writing for the Court: MILLER
• Decision Date: 11 December 2013
• Docket Number: No. 2 CA-2012-0038,2 CA-2012-0038
• Citation: State v. Lobato, No. 2 CA-2012-0038 (Ariz. App. Dec 11, 2013)
• Parties: STATE OF ARIZONA, Appellee, v. VICTOR LEE LOBATO, Appellant.

STATE OF ARIZONA, Appellee, v. VICTOR LEE LOBATO, Appellant.

No. 2 CA-2012-0038

ARIZONA COURT OF APPEALS DIVISION TWO

Filed December 11, 2013

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

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

Appeal from the Superior Court in Pima County

No. CR20101166001

The Honorable Jose H. Robles, Judge Pro Tempore

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz, Section Chief Counsel, Phoenix and

Joseph L. Parkhurst, Assistant Attorney General, Tucson

Counsel for Appellee

Law Offices of Christopher L. Scileppi, P.L.L.C., Tucson

By Christopher L. Scileppi

Counsel for Appellant

MEMORANDUM DECISION

Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Howard concurred.

MILLER, Judge:

¶1 Victor Lobato was convicted after a jury trial of two counts of armed robbery and two counts of aggravated assault. Lobato appeals from his convictions and sentences and claims his due process rights were violated when the trial court admitted an in-court identification without first holding a hearing to determine its reliability. He also contends that the prosecutor engaged in misconduct and committed a disclosure violation. For the reasons set forth below, we affirm Lobato's convictions and sentences, but vacate the criminal restitution order entered at sentencing.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). We also include pertinent procedural matters relevant to Lobato's arguments on appeal.

¶3 In March 2010, Lobato entered a hair salon wearing a baseball cap, surgical mask, and blue gloves. He approached the customer counter, laid a gun on the countertop, and demanded money from two salon employees, A.S. and E.W. A.S. and E.W. gave Lobato money from the cash drawers, and he exited the salon. Lobato was observed from the parking lot by a third hair salon employee, K.L.

¶4 During the state's opening statement, the prosecutor explained only K.L. was able to identify Lobato from a photo lineup. At trial, however, the prosecutor asked E.W. whether the person who had robbed her was in the courtroom. E.W. answered, "Yes," and proceeded to identify Lobato. E.W. indicated that she had notbeen shown a photographic lineup because she "was not there when [the police] brought the lineup." The prosecutor clarified that E.W. had never seen a photographic lineup, to which she answered: "No. I was shown some MySpace¹ pictures." E.W. also conceded that her in-court identification may have been tainted by seeing Lobato seated at the defense table, stating, "It could be tainted, but looking at him, I know that those are the eyes I saw through—between the mask and the hat that day."

¶5 On cross-examination, E.W. testified that it had not been police officers but rather the prosecutor who showed her the MySpace photographs of Lobato during a pretrial meeting. E.W. also indicated she understood at the time that the individual in the photographs shown to her were of the defendant in this case.

¶6 The following trial day, Lobato filed a motion for a mistrial and, in the alternative, a motion to strike testimony and request for a limiting jury instruction. In his motion, Lobato contended that the prosecutor's having shown E.W. the photographs was unduly suggestive and that the procedures used had tainted the identification to the degree that it was unreliable. The trial court denied Lobato's motion for mistrial as well as his motion to strike E.W.'s in-court identification, but granted a curative jury instruction, to which both of the parties stipulated.

¶7 The jury found Lobato guilty of armed robbery and aggravated assault against A.S. and E.W. The trial court imposed partially aggravated and presumptive sentences of imprisonment, to run concurrent with each other, the longest of which was 10.5 years. Lobato timely appealed his convictions and sentences.

In-court Identification

¶8 Lobato first argues the trial court committed reversible error when it denied his motion for a mistrial because the court failed to hold a hearing pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969). He also asserts the court abused its discretion when it denied his motion to strike the tainted in-courtidentification and contends the alleged errors violated his due process rights.²

¶9 We review the denial of a motion for a mistrial for an abuse of discretion. State v. Bible, 175 Ariz. 549, 598, 858 P.2d 1152, 1201 (1993). We also review a trial court's ruling on an in-court identification for an abuse of discretion. State v. Leyvas, 221 Ariz. 181, ¶ 9, 211 P.3d 1165, 1168 (App. 2009). And "[w]e will not reverse a conviction based on the erroneous admission of evidence without a 'reasonable probability' that the verdict would have been different had the evidence not been admitted." State v. Hoskins, 199 Ariz. 127, ¶ 57, 14 P.3d 997, 1012-13 (2000).

¶10 The Due Process Clause of the Fourteenth Amendment requires the state to conduct pretrial identification procedures 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). The presentation of identification evidence that is tainted by unduly suggestive procedures and creates "'a substantial likelihood of misidentification' violates a defendant's right to due process." State v. Nottingham, 231 Ariz. 21, ¶ 5, 289 P.3d 949, 952 (App. 2012), quoting Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183. In particular, due process concerns arise "when evidence lacking in foundation reaches the jury under circumstances that do not afford a defendant an opportunity to point out its weaknesses." State v. Nordstrom, 200 Ariz. 229, ¶ 26, 25 P.3d 717, 729 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012).

¶11 In Dessureault, our supreme court addressed these due process concerns and established a process for challenging pretrial identification procedures that are "significantly suggestive[,] and assuch materially increase[] the dangers inherent in eye witness identification." 104 Ariz. at 383-84, 453 P.2d at 954-55; see also Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169. That process consists of three steps. Dessureault, 104 Ariz. at 384, 453 P.2d at 955. First, when an 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." Id.; see also Nottingham, 231 Ariz. 21, ¶ 6, 289 P.3d at 952. Second, the in-court identification must be precluded if the trial judge concludes the pretrial identification was unduly suggestive and would taint any subsequent in-court identification of the suspect. Id. Third, if requested, the court is required to give a cautionary instruction should the court conclude "the pretrial identification process was suggestive but not sufficiently so to justify preclusion in light of the circumstances of the case." Nottingham, 231 Ariz. 21, ¶ 6, 289 P.3d at 952; accord Dessureault, 104 Ariz. at 384, 453 P.2d at 955.

¶12 We first address whether the trial court was required to hold a hearing pursuant to Dessureault. The record establishes that E.W. made an in-court identification after having viewed MySpace photographs of Lobato. The prosecutor showed E.W. the images before trial, and E.W. understood at the time that the photographs were of the defendant. This pretrial procedure was revealed for the first time during E.W.'s testimony, and Lobato subsequently challenged the in-court identification at trial. Accordingly, the trial court was required to hold a hearing to determine whether the in-court identification was tainted as a result of the prosecutor's showing E.W. the MySpace photographs. See Dessureault, 104 Ariz. at 384, 453 P.2d at 955; Leyvas, 221 Ariz. 181, ¶ 12, 211 P.3d at 1169.

¶13 Having determined the trial court erred when it declined to hold a Dessureault hearing, we next examine whether the court also erred in admitting E.W.'s in-court identification. See State v. Lang, 107 Ariz. 400, 401, 389 P.2d 37, 38 (1971) (reviewing court "called upon to decide": (1) whether pretrial identification procedure was unduly suggestive; (2) if so, whether in-court identification was unreliable; and, (3) if so, whether it was harmless error). Where, as here, an in-court identification is challenged at thetrial level, meaningful appellate review requires us to determine from the record whether the in-court identification was tainted by the prior identification procedures. Dessureault, 104 Ariz. at 384-85, 453 P.2d at 954-55. There is a two-part test for determining admissibility: "(1) whether the method or procedure used was unduly suggestive, and (2) even if unduly suggestive, whether it led to a substantial likelihood of misidentification, i.e., whether it was reliable." Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183; see also State v. Price, 213 Ariz. 550, ¶ 4, 145 P.3d 647, 648-49 (App. 2006) (determining pretrial identification procedure suggestive, but identification otherwise reliable), vacated in part on other grounds State v. Price, 217 Ariz. 182, 171 P.3d 1223 (2007). When the pretrial procedure is so overly suggestive so as to make the in-court identification unreliable, the testimony must be excluded. See Lehr, 201 Ariz. 509, ¶ 46, 38 P.3d at 1183.

¶14 The prosecutor showed E.W. specific photographs of an individual E.W. understood to be the defendant standing trial. E.W. had not previously identified Lobato in a photographic lineup. "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned." See Stovall v. Denno, 388...