State v. Lopez

• Decision Date: 08 December 1994
• Docket Number: No. 910074,910074
• Citation: 886 P.2d 1105
• Parties: STATE of Utah, Plaintiff and Appellee, v. Benny LOPEZ, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1105

886 P.2d 1105

STATE of Utah, Plaintiff and Appellee, v. Benny LOPEZ, Defendant and Appellant.

No. 910074.

Supreme Court of Utah.

Dec. 8, 1994.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Todd Utzinger, Asst. Attys. Gen., Salt Lake City, for plaintiff.

Lee C. Rasmussen, Salt Lake City, for defendant.

HOWE, Justice:

Defendant Benny Lopez appeals from his conviction of two first degree felonies, aggravated sexual abuse of a child in violation of Utah Code Ann. § 76-5-404.1 (1990) and sodomy on a child in violation of Utah Code Ann. § 76-5-403.1 (1990).

At approximately 8:30 a.m. on Friday, December 8, 1989, the victim, a ten-year-old female student at Timpanogos Elementary School, was molested by a stranger as she walked through a tunnel beneath the street adjacent to the school. When the attacker left the tunnel, the victim ran to the school principal's office and told the secretary that she wanted to see the principal because a man in the tunnel had "poked [her] in the privates." After speaking with the principal, the police, and the victim's mother, the victim was taken to the emergency room at Utah Valley Regional Medical Center for an examination. The physician's examination of the victim, which documented a tear in the hymen and the presence of a small amount of blood, was consistent with the victim's account of the attack.

Although nobody witnessed the attack, four people saw a man whom they later identified as Lopez near the school during the hour of the attack. The man appeared suspicious to the witnesses because on that morning and for several mornings prior to the attack, he had sat in his vehicle in an area where no places of business had opened for the day. He would watch the surrounding area closely, often leaving for short explorations and then returning. One witness copied down the license plate number of his vehicle, and on the afternoon following the attack, the police used the number to locate Lopez and his vehicle at Utah Valley Community College ("UVCC") (now known as Utah Valley State College).

The police arrested Lopez, who immediately requested an attorney. Before receiving an attorney, however, he agreed to pose for a photograph, and police officer Brad Leatham used this picture to prepare a "photo array," a collection of six photographs to be shown to the victim and other witnesses for the identification of the attacker. The police department's policy for preparing photo arrays was to choose photos of people who were about the same age as the suspect, with the same ethnic background, skin tone, hair color, hair length, and facial hair. Although Lopez has a "marginally Hispanic appearance," the photo array included only one other photograph of a man with Hispanic-type features. Additionally, Lopez's photograph was the only one with a clear, white background. However, Officer Leatham's superior, Captain George Pierpont, described the photo array as a good one because Lopez was not obviously Hispanic and the skin tones of most of the men in the photo array were similar to that of Lopez.

Lopez's attorney was not present when Officer Leatham showed the photo array to the victim or to any of the other four witnesses who saw the suspicious man parked near the crime scene. Only the victim and two of the other witnesses identified Lopez from the photo array, but all five eyewitnesses identified Lopez at the preliminary hearing. After the hearing, Lopez was bound over to the district court to await arraignment.

At the arraignment, Kent Willis withdrew as defense counsel due to a conflict of interest. Stephen Madsen appeared to represent Lopez, and he represented him throughout the pretrial hearing and the suppression hearing. At the suppression hearing, the court denied Lopez's motion to suppress evidence of the photo array identification and eyewitness identification. The court determined that the lack of counsel at the photo array identification was not a violation of Lopez's constitutional rights and the array was not impermissibly suggestive.

Madsen continued to represent Lopez during the trial and sentencing. Lopez was found guilty, and the court sentenced him to one mandatory term of six years to life for aggravated sexual abuse of a child and to another mandatory term of ten years to life for sodomy on a child, the terms to run concurrently. Lopez appeals.

Before hearing arguments on appeal, this court ordered the trial court to hold an evidentiary hearing pursuant to rule 23B of the Utah Rules of Appellate Procedure to determine whether Lopez had received ineffective assistance of counsel. At this hearing, Lopez indicated that he was satisfied with Madsen's representation but argued that Willis's failure to conduct an immediate and adequate investigation of his alibi constituted ineffective assistance of counsel. The trial court ruled that Willis's conduct was not deficient and refused to grant a new trial.

The first issue presented on appeal is whether the police violated Lopez's Sixth Amendment right to counsel by failing to provide him with an attorney at the photo identification procedure. The second issue is whether the photo array was impermissibly suggestive, making subsequent eyewitness identification at trial a violation of federal and state constitutional due process. Finally, Lopez contends that the ineffective assistance of his counsel entitles him to a new trial.

RIGHT TO COUNSEL AT A PHOTO IDENTIFICATION PROCEDURE

Lopez argues that a federal constitutional right to counsel at a photo identification procedure is implied by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), which held that defendants are entitled to counsel when they appear in a lineup. Lopez cites two other cases in support of his argument, Thompson v. State, 85 Nev. 134, 451 P.2d 704 (1969), and People v. DeMeyers, 183 Mich.App. 286, 454 N.W.2d 202 (1990), which held that a defendant is entitled to counsel at photo identification procedures. Lopez asserts that United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), which held that the defendant was not entitled to counsel at a photo identification procedure, does not preclude this court from finding a Sixth Amendment right to counsel. He asserts that the defendant in Ash, unlike himself, was not in custody when law enforcement officials showed the photo array to witnesses.

Because Lopez does not assert that the Utah Constitution grants him the right to counsel at a photo identification procedure, we will undertake no such analysis. We begin by addressing the United States Supreme Court's holding in Ash. There, the defendant was convicted of robbing a federally insured bank, and he appealed on the ground that the Sixth Amendment ensured him the right to have counsel present at a post-indictment photo identification procedure. Id. at 300-01, 93 S.Ct. at 2569. The procedure that the defendant challenged was conducted shortly before trial but long after the defendant's arrest and indictment. Id. at 303, 93 S.Ct. at 2570. Although law enforcement officials in Ash had conducted a separate photo identification procedure before the defendant was arrested and indicted, the defendant did not challenge that procedure. Id. at 303 n. 3, 93 S.Ct. at 2570 n. 3. In his challenge, the defendant in Ash relied on United States v. Wade, where the Court held that the Sixth Amendment entitles defendants to counsel at lineups. Id. at 311, 93 S.Ct. at 2574. The defendant argued that, like the defendant in Wade, he was forced to face a trial-like confrontation which required the assistance of counsel to preserve the adversary process and deny the prosecution the advantage of encountering an unprotected defendant. Id. at 312-14, 93 S.Ct. at 2575-76. The United States Supreme Court rejected this argument, explaining that "[s]ince the accused himself is not present at the time of the photographic display ... no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary." Id. at 317, 93 S.Ct. at 2577.

In Ash, the United States Supreme Court irrefutably ruled that the Sixth Amendment does not entitle defendants to counsel during photo array presentations to witnesses, and this ruling applies to presentations made before and after indictment. However, we acknowledge that there is some authority to the contrary. Two states, Michigan and Pennsylvania, afford defendants the right to counsel at a photo identification procedure if the procedure occurs after arrest. We review these holdings separately.

Three months before the United States Supreme Court decided Ash, the Michigan Supreme Court adopted two rules for photo identification procedures. First, photo identification procedures cannot be used after the suspect is arrested unless a lineup is not practicable. Second, if such procedure is used after arrest, the suspect is entitled to counsel. People v. Anderson, 389 Mich. 155, 186-89, 205 N.W.2d 461, 476 (1973). The court based its decision on three United States Supreme Court decisions, including Wade, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), which held that any evidence of a pretrial lineup where counsel was not present is per se inadmissible, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), which held that due process prohibits evidence of impermissibly suggestive photo identification procedures. Anderson, 205 N.W.2d at 465-66. Although Ash later rejected the argument that these cases imply a Sixth Amendment right to counsel at photo identification procedures, Ash, 413 U.S. at 314-18, 93 S.Ct. at 2576-78, the Michigan Supreme Court upholds its photo identification rules. People v. Kurylczyk, 443 Mich. 289, 300, 505 N.W.2d 528, 532 (1993). However, the court does acknowledge the contrary ruling of the United States Supreme Court and bases its photo identification rules on...