State v. Myers

• Decision Date: 17 October 1977
• Docket Number: No. 3690,3690
• Citation: 570 P.2d 1252,117 Ariz. 79
• Parties: STATE of Arizona, Appellee, v. John Robert MYERS, Appellant.
• Court: Arizona Supreme Court

Page 1252

570 P.2d 1252

117 Ariz. 79

STATE of Arizona, Appellee, v. John Robert MYERS, Appellant.

No. 3690.

Supreme Court of Arizona, In Banc.

Oct. 17, 1977.

Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Steven D. Sheldon, Asst. Attys. Gen., Phoenix, for appellee.

Ross Anderson, Phoenix, for appellant.

HAYS, Justice.

Defendant/Appellant John Robert Myers was charged by indictment with the armed robbery and attempted murder of David Ryan. The jury returned a verdict of guilty on both counts.

Appellant filed a timely Motion for Judgment of Acquittal and Motion for New Trial. These motions were denied. Appellant was sentenced to serve fifty years to life for the armed robbery and thirty to fifty years for the attempted murder. Appellant filed a timely Notice of Appeal, bringing his case within the jurisdiction of this court pursuant to A.R.S. § 13-1711.

FACTS

At approximately 8:00 P.M. on September 30, 1975, Martin Jorgenson left a bar at 32nd Street and McDowell Road in Phoenix. Jorgenson testified that after he got into the 1976 Chevrolet Monte Carlo which he was driving, a man later identified as appellant approached the driver's window, pointed a sawed-off shotgun at him and told him to move over.

Another white male, Jerry Dean Williams, got into the back seat, and a black male, Steven Housley, came to the passenger's window and demanded Jorgenson's money. Housley ran away with the money. Appellant drove Jorgenson's car around the neighborhood for a few minutes looking for Housley; then appellant drove the car north. Appellant refused to allow Jorgenson to get out of the car. When appellant stopped at a traffic light, Jorgenson jumped out of the car and contacted the police.

Further testimony at trial indicated that after Jorgenson left the car, appellant and Williams drove around the Phoenix area and then to a U-Totem store near Bethany Home Road and the freeway in Phoenix. Appellant entered the store while Williams waited in the car.

The victim of the armed robbery and attempted murder, David Ryan, testified that he was outside the store when a man later identified as appellant approached him and asked if the store was closed. Ryan replied that the store was still open and asked appellant what he wanted. Appellant asked for some cigarettes. Ryan and the appellant went into the store. When they reached the counter, Ryan heard a noise, looked around and saw that appellant was removing a shotgun from his shirt.

Appellant told Ryan that he was aware of the store's trip camera and that if Ryan pulled the trip, appellant would shoot him. Ryan went to the cash register and opened it. He asked appellant if he wanted him to take the money out of the register or if appellant wanted to take the money out of the register himself. At this point, without any provocation from Ryan, appellant shot him with the sawed-off shotgun, critically injuring him.

Williams testified that when appellant returned to the car, he was carrying money and the shotgun. Williams also testified that he had heard a loud boom while appellant was out of the car, and that when appellant returned to the car, appellant told Williams that he just blew someone away. Williams stated that appellant told him he had told the man to put his hands on his head, and the man did; then the man moved his head and he (appellant) shot him.

A criminalist for the Phoenix Police Department testified at trial that an unused shell in the shotgun found in the vehicle stolen from Jorgenson was the same gauge and size as the shell which injured Ryan. The criminalist further testified that based upon his experiments, if this shotgun was used on Ryan, it was probably fired from a distance of three to six feet.

At the trial, Williams admitted that he was intoxicated at the time of the events and could not remember everything that happened that night. Defense counsel attacked Williams' credibility on this, and other bases.

Appellant raises fourteen issues on appeal. Because several of these issues overlap, we will consider a logical grouping of issues rather than discussing each individual issue as it is set forth in the briefs.

THE IN-COURT IDENTIFICATION OF DEFENDANT BY THE VICTIM

Appellant argues that his constitutional right to due process of law was violated by permitting Ryan to identify him at the trial as the person who had robbed and shot him. It is a well-established rule of law that a criminal defendant has a due process right to a fair identification procedure. See, e. g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Dessureault, 104 Ariz. 380, 453 P.2d 951, reh. denied, 104 Ariz. 439, 454 P.2d 981, cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). The primary concern of the law is that the identification be reliable. It is essential that the totality of circumstances surrounding the identification indicate that the defendant has not been mistakenly identified. State v. Strickland, 113 Ariz. 445, 556 P.2d 320 (1976); State v. Dessureault, supra.

In this case, the victim had been unable to identify the defendant in a photo lineup or in a live lineup. He testified that he could not identify the defendant in the photo lineup because police officers presented this lineup to him just two days after he was shot when he was still in the intensive care unit of the hospital and he did not have his glasses with him. Although Ryan borrowed the officer's glasses, he was not satisfied that he could see the photos clearly enough to identify anyone.

Ryan told police officers that the man who robbed and shot him had long reddish-brown hair, a mustache and hair on his face. At the live lineup, no participant had the amount of facial hair that Ryan had seen on his attacker. One participant had "pork chop" sideburns; at least one participant had a mustache, but otherwise all participants were clean-shaven. A police officer asked Ryan to imagine facial hair on all the lineup participants and then indicate which person looked most like his attacker. On this basis, Ryan did select a person who resembled his attacker, but Ryan also mentioned to the officer several ways in which the person he selected differed from the robber.

Because Ryan had not been able to identify the defendant previously, defense counsel sought to prevent him from identifying the defendant at the trial. Therefore, the trial judge held a hearing out of the presence of the jury. At this hearing Ryan testified regarding how long he had been able to observe the robber, the lighting conditions at the time of observation, and the reasons for his inability to identify the defendant previously. Upon the request of the prosecutor, Ryan identified the defendant as the robber and attacker. The defendant, dressed in non-jail attire, was present at the hearing, with the approval of defense counsel. Ryan stated that he had no doubts that defendant was the person who had robbed him. At the conclusion of the hearing, the trial judge ruled that Ryan might be asked to identify the defendant at the trial.

At the trial, evidence was admitted showing Ryan's inability to identify the defendant in the photo and live lineups, and Ryan was extensively cross-examined regarding the accuracy of his present identification of the defendant. Ryan explained that one thing which helped him to identify the defendant at trial and which had hindered his identification efforts at the live lineup was that the defendant was very neatly groomed at the robbery and at trial, whereas no one in the live lineup had this appearance.

Appellant argues that the trial court committed reversible error in permitting Ryan to identify him at the hearing and trial because these identifications occurred under unduly suggestive circumstances. While we realize that the challenged identifications occurred when the victim was presented essentially with only one choice, the defendant, and we realize that such an identification involves a great risk of mistake, we believe that the trial court correctly determined that the identification in this case was accurate. The law does not preclude a victim from identifying his attacker, presented alone, at a later time just because the victim could not identify the attacker in a group earlier. All the law requires is that the identification occur in circumstances which assure that the identification is reliable. Dessureault, supra.

At the conclusion of the hearing, the trial judge had evidence to support a finding that Ryan's identification of the defendant was based on his contact with the defendant on the night of the robbery and not upon any suggestive influences which might be operating within the hearing. The identification of the defendant thus meets the due process requirement of fairness and reliability and also satisfies the test of State v. Dessureault, supra.

The trial judge had Ryan personally before him and was in a better position than we are to ascertain whether Ryan was making a reliable identification. Whether an in-court identification is accurate and is based upon fair procedures is a question which the trial court must decide, State v. Dessureault, supra, 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 here.

Regarding appellant's argument that the victim's identification of the appellant at the pretrial hearing somehow tainted the in-court identification, we have already indicated that the trial court could properly conclude that the identification at the hearing was reliable and not due to any suggestiveness inherent in the hearing. To answer appellant's argument more completely, we note that if the hearing had ended after the victim had been questioned as to his basis for identifying his attacker, an in-court...