State v. Milonich
| Decision Date | 05 March 1975 |
| Docket Number | No. 3073,3073 |
| Citation | 532 P.2d 504,111 Ariz. 442 |
| Parties | STATE of Arizona, Appellee, v. Belton Vann MILONICH, Appellant. |
| Court | Arizona Supreme Court |
N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen., by Robert S Golden, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Maricopa County Public Defender by Jonathan H. Schwartz, Deputy Public Defender, Phoenix, for appellant.
Milonich was indicted for the crime of sale of marijuana ARS § 36--1002.07. The offense occurred when an officer of the Phoenix Police Department purchased a bag of marijuana from the appellant, hereinafter referred to as the defendant.
The only question raised on appeal is whether the pretrial identification procedure of the officer was impermissibly suggestive, giving rise to an irreparable misidentification of the defendant and tainting the in-court identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The test is one of the totality of the circumstances of the procedure. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
Questions concerning the accuracy of an in-court identification of the defendant untainted by pretrial procedures are preliminary questions for the trial judge, whose determination will not be overturned on appeal unless there is clear and manifest error. State v. Williams, 111 Ariz. 175, 526 P.2d 714 (1974). No such error is apparent in this instance and the ruling of the trial court permitting the identification will be affirmed.
The sale took place November 7, 1973. The officer had previously spoken to the defendant, known to the officer then as 'Buzzi,' for about 15 minutes. At the time of the sale, the two talked about one-half hour. November 16, 1973, the officer saw the defendant and requested the police unit to stop to ascertain the defendant's true name. The officer testified that prior to trial, he had seen Milonich approximately 15 times.
At some time during December, 1973, or January, 1974, the officer went to the files of the Maricopa County Sheriff's Department to compare the name he had been given with a photo that the Department had. He determined that the photo and the name were of the same individual and he retained the picture. At trial, the officer was asked to select a picture of the defendant from among several. He had some difficulty but when the defendant entered the courtroom, the officer positively identified him on the basis of previous personal contacts.
The facts of this case are similar to those of State v. Lee, 110 Ariz. 357, 519 P.2d 56 (1974). If anything, the facts in this instance suggest more strongly than in the Lee case that there was nothing in the procedure...
To continue reading
Request your trial
-
State v. Bojorquez
...is a preliminary inquiry of the trial judge, not to be overturned on appeal absent a clear and manifest error. State v. Milonich, 111 Ariz. 442, 532 P.2d 504 (1975); State v. Williams, 111 Ariz. 175, 526 P.2d 714 As to Pritchett, the trial judge concluded that the circumstances of the witne......
-
State v. Lamb
...257 (1970), and the trial court's determination will not be overturned on appeal absent a clear and manifest error. State v. Milonich, 111 Ariz. 442, 532 P.2d 504 (1975); State v. Williams, 111 Ariz. 175, 526 P.2d 714 (1974). Whether Officer Buckner intentionally misrepresented the facts or......
-
State v. Armijo
...and the subsequent in-court identification were admissible 2. State v. Williams, 113 Ariz. 14, 545 P.2d 938 (1976); State v. Milonich, 111 Ariz. 442, 532 P.2d 504 (1975); State v. Taylor, 109 Ariz. 518, 514 P.2d 439 (1973). In Neil, the Court stated: '(T)he factors to be considered in evalu......
-
State v. Myers
...and the trial court's determination will not be overturned on appeal in the absence of clear and manifest error. State v. Milonich, 111 Ariz. 442, 532 P.2d 504 (1975); State v. Williams, 111 Ariz. 175, 526 P.2d 714 (1974). We find no such error Regarding appellant's argument that the victim......